Adjustment of Status; Continued Validity of Nonimmigrant Status, Unexpired Employment Authorization, and Travel Authorization for Certain Applicants Maintaining Nonimmigrant H or L Status [64 FR 29208] [FR 28-99]

DOCUMENT NUMBER: FR28-99

FEDERAL REGISTER CITE: 64 FR 29208

DATE OF PUBLICATION: June 1, 1999

BILLING CODE 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 214 and 245

[INS No. 1881-97]

RIN 1115-AE96

Adjustment of Status; Continued Validity of Nonimmigrant Status,

Unexpired Employment Authorization, and Travel Authorization for

Certain Applicants Maintaining Nonimmigrant H or L Status

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

SUMMARY: This rulemaking amends and clarifies Immigration and Naturalization Service regulations governing an H-1 and L-1 nonimmigrant's continued nonimmigrant status during the pendency of an application for adjustment of status. This action incorporates into the regulations existing Service policy statements regarding this issue. In addition, this rule eliminates the requirement for those adjustment applicants who maintain valid H-1 and L-1 nonimmigrant status, and their dependent family members, to obtain advance parole prior to traveling outside the United States. Finally, the Service is considering expanding the "dual intent" concept to cover long term nonimmigrants, in E, F, J, and M visa classifications, who are visiting this country as traders, investors, students, scholars, etc.

DATES: Effective date : This interim regulation is effective July 1, 1999.

Comment date : Written comments must be submitted on or before August 2, 1999.

ADDRESSES: Please submit written comments, in triplicate, to the Director, Policy Directives and Instructions Branch, Immigration and Naturalizations Service, 425 I Street, NW., Room 5307, Washington, DC 20536. To ensure proper handling, please reference INS No. 1881-97 on your correspondence. Comments are available for public inspection at the above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Frances A. Murphy, Adjudications Officer, Residence and Status Services Branch, Office of Adjudications, Immigration and Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC 20536, telephone (202) 514-3978.

SUPPLEMENTARY INFORMATION:

Why Is the Service Issuing This Regulation?

This rule is being issued to codify previous Service policy statements regarding the eligibility of H-1 and L-1 nonimmigrants, and their dependent family members, to maintain and to extend their nonimmigrant status while their applications for permanent residence remain pending. This rule also addresses the issue of the eligibility of these aliens to travel outside the Untied States without abandoning their applications for status.

What Categories of Aliens May Maintain Nonimmigrant Status After Having Filed for Adjustment of Status?

Under Section 214(b) of the Immigration and Nationality Act, (Act), most nonimmigrants who apply for adjustment of status to that of permanent residents of the United States are presumed to be intending immigrants and, therefore, are no longer eligible to maintain nonimmigrant status. Section 214(h) of the Act, however, permits aliens described in section 101(a)(15)(H)(i) and (L) of the Act, i.e., temporary workers in specialty occupations, intracompany managerial or executive transferees, and their depend ent spouses and children, to maintain their nonimmigrant status during the pendency of their applications for adjustment of status.

In addition, the Service is considering expanding the dual intent concept to cover other long term nonimmigrants who are visiting this country as traders (E-1), investors (E-2), students (F-1, J-1 or M-1), or scholars (J-1), etc. These nonimmigrants, who are typically authorized to stay in this country for considerable lengths of time, often need to make short overseas travels during their authorized stay. Under the "dual intent" doctrine, these nonimmigrants would be able to maintain valid nonimmigrant st atus and travel overseas without advance parole while applying for adjustment of status.

The Service has, traditionally, considered applying for adjustment of status as relevant evidence in determining whether an alien has abandoned the requisite nonimmigrant intent. Section 214(b) of the Act does not, however, require the Service to hold this position as an absolute rule. So long as the alien clearly intends to comply with the requirements of his or her nonimmigrant status, the fact that the alien would like to become a permanent resident, if the law permits this, does not bar the alien's cont inued holding of a nonimmigrant status.

The Service is interested in the public view on this matter and would appreciate written comments.

How Does This Rule Affect Maintenance of H-1 and L-1 Nonimmigrant Status?

Section 214(h) of the Act specifically provides that the fact that an H-1 or L-1 nonimmigrant is the beneficiary of an application for a preference status filed under section 204 or has "otherwise sought permanent residence" in the United States shall not constitute evidence of an intent to abandon the foreign residence. The Service interprets section 214(h) to mean that, in addition to the approval of a labor certification or a preference visa petition, the mere filing of an application for status shall no t be the basis for denying an H-1 or L-1 nonimmigrant's properly completed application (or that of their dependent family members in H-4 or L-2 status) for extension of stay or change of status within the H-1 or L-1 (or, as applicable, a H-4 or L-2) classifications. A pending adjustment application, however, does not relieve nonimmigrant H-1 and L-1 aliens of the requirement to comply with the terms of their nonimmigrant classification, including restrictions on periods of stay, change of employer, and enga ging in employment. For example, changing employers without first obtaining approval from the Service will cause the alien to lose his or her valid H-1 or L-1 nonimmigrant status.

What Are the Documentary Requirements for Travel Outside the United States for H-1 and L-1 With Pending Applications for Adjustment of Status?

Current Service regulations at § 245.2(a)(4)(ii) require that all adjustment applicants obtain advance parole authorization prior to traveling outside the United States. Prior to enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [IIRIRA], such persons were deemed to be applicants seeking admission and were subject to the grounds of excludability. The Service imposed the advance parole requirement and the concomitant exclusion process in order to maintain control over t he re-entry of such aliens. With the phasing out of exclusion proceedings under IIRIRA, however, the Service believes it is now appropriate to amend its regulations to provide fuller effect to section 214(h) of the Act by exempting H-1 and L-1 nonimmigrants with pending applications for adjustment of status (as well as their dependent family members) from obtaining advance parole authorization prior to traveling outside the United States. Generally, such H-1 and L-1 nonimmigrants may be readmitted into the United States in the same status provided they are in possession of a valid H-1 or L-1 nonimmigrant visa (for those aliens not visa exempt), and the original I-797 receipt notice for the application for adjustment of status, and continue to remain eligible for H-1 or L-1 classification. All other nonimmigrants with pending applications for status must obtain advance parole authorization in accordance with § 245.2(a)(4)(ii) prior to traveling outside the United States.

Under What Section of the Regulations Would H-1 or L-1 Nonimmigrants be Granted Authorization for Continued Employment?

H-1 and L-1 nonimmigrants filing applications for permanent residence have two options with respect to work authorization, but the choices have different consequences. Such aliens, of course, may continue to work in accordance with the terms of their nonimmigrant employment authorization, as provided in § 274a.12(b)(9) or (12). This means that, while their application for adjustment of status is still pending, their employment is limited to the employer for whom the current nonimmigrant visa petition was a pproved.

In the alternative, when filing an application for permanent residence, an H-1 or L-1 nonimmigrant may also file a form I-765 application for unrestricted employment authorization as provided in § 274a.12(c)(9). After receiving an Employment Authorization Document, the alien would be eligible to work for any employer, and this work authorization would continue as long as the alien's application for adjustment of status remains pending. However, such an alien should bear in mind that, by accepting employment with an employer other than the one which filed the approved H-1 or L-1 nonimmigrant petition under § 274a.12(c)(9), the alien would no longer be in compliance with the requirements of the H-1 or L-1 nonimmigrant status.

If the alien's application for adjustment of status is ultimately approved, then it would not matter which option the alien had followed. However, if the application for adjustment is denied, then the alien's status would depend on which option was followed. If the alien had continued to work for an approved employer under the terms of his or her H-1 or L-1 status, and otherwise properly maintained such status, the alien would still retain his or her nonimmigrant status, if that status had not yet expired a ccording to the established terms. However, an alien who had chosen to work for a different employer during the period that his or her application for adjustment of status was pending would have thereby lost his or her H-1 or L-1 nonimmigrant status. Thus, if the alien's application for adjustment of status is denied, the alien would no longer be in a lawful status and would be subject to removal proceedings. In addition, a dependent family member who had chosen to engage in unrestricted employment while t he application for adjustment of status was pending would lose his or her H-4 or L-2 nonimmigrant dependent status. Therefore, if the principal's application for adjustment of status is denied, such dependent family members would also not be in a lawful status and could not revert back to H-4 or L-2 dependent status.

Filing of I-765 for H's and L's Seeking Employment Authorization Under § 274a.12(c)(9)

H-1 and L-1 nonimmigrants filing adjustment applications who intend to seek open-market employment authorization under § 274a.12(c)(9) should file Form I-765 concurrently with the I-485 to avoid a lapse of employment authorization. After filing the Form I-765, the H-1 or L-1 nonimmigrant must wait until he or she receives the employment authorization document before the alien may enter into open-market employment. The INS Service Centers will continue to entertain requests for expeditious handling of Form I -765 employment authorization requests in accordance with prevailing criteria. Expeditious handling of a request for employment authorization under § 274a.12(c)(9), however, may be insufficient to ensure that a lapse in employment authorization does not occur when the application for status is filed near the expiration of H-1 or L-1 nonimmigrant status.

What Are the Effects of Denial of I-485 on Employment Authorization and Nonimmigrant Status?

An alien whose adjustment of status application is denied but who has continuously maintained his or her H-1 or L-1 nonimmigrant status while the adjustment application was pending, may continue to work in accordance with the terms of the nonimmigrant visa. If the adjustment of status application is denied, any employment authorization granted to the alien under § 274a.12(c)(9) will be subject to termination pursuant to § 274a.14(b). Further, if the alien is not maintaining his or her H-1 or L-1 nonimmigran t status, he or she will be subject to removal proceedings.

How Does the Approval of an Application for Adjustment of Status During the Alien's Absence From the United States Affect His or Her Readmission?

In accordance with 8 CFR 211.1, a Form I-797 approval notice for an adjustment of status application is insufficient to establish an arriving alien's entitlement to lawful permanent residence. An H-1 or L-1 nonimmigrant (or a dependent family member) whose application for adjustment of status was approved during the alien's absence from the United States will be granted deferred inspection in accordance with § 235.2(b) upon presentation of a valid I-797 notice of approval of the application for status. Such deferred action shall be for the purpose of providing conclusive evidence that the alien's status has in fact been adjusted to that of a lawful permanent resident.