DACA on Feb. 18

The USCIS has recently issued guidance in the form of an advisory opinion discussing the effect that re-entry with advance parole has on previously granted H-1B or L-1 status. The USCIS letter (issued in October 2004) essentially re-confirms an earlier INS memo on advance parole that provided that individuals who enter on advance parole but are within the validity period of an approved H-1B or L-1 petition may extend and thereby re-instate their nonimmigrant status. That earlier INS memorandum was issued in May 2000.

TRAVEL ABROAD WHILE THE APPLICATION IS PENDING

With some exceptions, leaving the United States while the adjustment of status application is pending is considered abandonment of the application, unless the alien receives an advance parole before leaving the country. One exception relates to H and L aliens who are permitted to travel abroad and reenter the United States on their H or L visas while their adjustment applications are pending. Another exception relates to K-3, K-4, and V nonimmigrants.

H and L nonimmigrants

The Service rules exempt H-1 and L-1 nonimmigrant with pending adjustment of status applications (as well as their dependent family members) from obtaining advance parole authorization prior to traveling outside the United States. Such nonimmigrants may be readmitted into the United States in the same status provided:

(1) they intend to resume employment with the same employer for whom they had previously been authorized to work as H-1 or L-1 nonimmigrants;

(2) they are in possession of a valid H-1 or L-1 nonimmigrant visa; and

(3) they are in possession of the original I-797 receipt establishing that an adjustment of status application has been filed.

H-1 and L-1 nonimmigrants who reenter the United States using their H or L visas, in lieu of an advance parole document, may extend their status after a trip abroad because they are considered to be maintaining valid H or L status upon reentry. Extensions are possible, of course, only if the alien has not reached the maximum period of stay in H or L status. Change of status between the H-1 and L-1 categories is also possible under the new policy (provided, again, the change of status applicant has not reached the maximum period of H or L stay).

If the adjustment application is approved while the H or L nonimmigrant is abroad, he or she will be granted deferred inspection based on the I-797 approval notice. The deferred inspection will be for the express purpose of providing evidence that the alien’s status has in fact been adjusted to that of a lawful permanent resident, e.g., issuance of a temporary ADIT stamp on the alien’s foreign passport.

The Service has also clarified that an alien who has previously been paroled into the United States may be readmitted as an H-1 or L-1 nonimmigrant provided: (1) he or she is still in possession of a valid H-1 or L-1 visa; (2) the alien remains eligible for H-1 or L-1 classification; and (3) when there has been a recent change of employer or extension of stay, the individual possesses evidence of an approved I-129 petition (i.e., Form I-797), or there is a notation on the nonimmigrant visa indicating the petition number and the employer’s name. If they do not meet these criteria, then they must use an advance parole document for travel purposes.

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