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The Answer Man: H-1B Adjusters and Advance Parole

1 Dec

By Gary Endelman

Dear Answer Man:

This is a real puzzler. Here are the facts. I have several clients who were in valid H-1B status and filed for adjustment of status to lawful permanent resident. Most of my employers prefer not to apply for advance parole if the person still has a valid non-immigrant work visa, and did not do so in the cases I am writing about. Frankly, I agree with this anti-advance-parole policy.

Consider the following fact patterns. In each case, the alien took advantage of adjustment of status portability afforded by § 106(c) of the American Competitiveness in the 21st Century Act (“AC 21”) now codified as § 204(j) of the Immigration and Nationality Act. They each had an approved I-140 immigrant petition and their adjustment of status applications had been on file for at least 180 days. They have each moved to a job that is the same or very similar to the one they had before. Each then left the United States on a short trip abroad.

  1. In one instance, the person left for Brisbane, Australia to attend the world shuffleboard championship. Here, a new employer quickly filed an H-1B petition so my client had the filing receipt prior to departure.
  2. In another case, it was not until after he left for an international curling competition in Prague that a new employer filed the H-1B petition.
  3. In the case of a third client, after the ecstasy of a frenzied klezmer concert in Warsaw, she wanted to return to work for an employer using the employment authorization document (EAD) issued in connection with her application for adjustment of status. But, the new employer never filed a new H-1B petition for her. She enters using the H-1B visa for her old employer.
  4. Finally, there was a fourth client, here in L-1 intra-company status, who came back from witnessing a dazzling display of sheep sheering expertise in New Zealand to take a stunningly lucrative opportunity at a new hedge trading fund.

 A little weird, I know, but life can be like that. I write to ask if, in your opinion, any of my clients has unintentionally abandoned his adjustment of status application due to unauthorized travel. After all, are you not the master of immigration trivia?

Please answer timely without the lame witticisms that, rumor has it, have occasionally and unfortunately characterized your past efforts. I am sure you realize the need for sobriety in the law. Pending such a comprehensive and penitential response,

I have the honor to remain,

Relaxed in Rochester

P.S. In the interest of full disclosure, which is quite rare, I should admit there was one time when an H-1B client applied for adjustment of status after which his employer decided to save a few bucks by not paying me to extend his H-1B status. For this reason, I relaxed my traditional disinclination against advance parole and obtained same for him. By the time he was ready to return from his annual pilgrimage to ancestral haunts in the Scottish highlands, I had recovered my nerve after a few stiff drinks and I managed to persuade the employer to do the right thing. We filed a straight H-1B petition, which was approved, thus allowing my client to obtain the H-1B visa that he used to come back to the United States. Knowing how much I disliked advance parole, my client happily kept it in his pocket before, during and after admission. He never used it. What a relief!

Dear Relaxed:

Knowing your stated reservations, I shall summon up every ounce of gravitas in what I hope will be a successful yet properly reserved appeal to the “better angels of [your] nature,” if I may purloin Mr. Lincoln’s immortal phrase that graced his first inaugural address.

These brave souls did not file for advance parole travel permission but moved on to greener pastures with new employers in reliance upon the shining promise of § 106(c) of AC21, which allows them to move to the same or similar occupation after their green card applications have been gathering dust for 180 days. So what is the problem? Get a magnifying glass to read 8 CFR § 245.2(a)(4)(ii)(C):

The travel outside of the United States by an applicant for adjustment of status … who is in lawful H-1 or L-1 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien remains eligible for H or L status, is coming to resume work with the same employer for whom he or she had previously been authorized to work as an H-1 or L-1 nonimmigrant … (emphasis added).

Now, there’s the rub. Even where your client has an EAD, he or she would not have been previously authorized to work for the new employer as an H-1B or L-1 nonimmigrant, nor would he be coming back to work in that capacity but, rather, as a § 245 adjustment applicant with a general grant of work permission. The alien is NOT coming back to work for the old employer who sponsored the H or L petition. In blissful reliance upon AC21 adjustment of status portability; he or she has taken a limo uptown and is ready for the future. As a result, a suspicious CIS adjudicator with a green eye shade and a fine eye for detail might well find that such a vagabond has abandoned the adjustment of status much to his or her utter surprise and profound horror.

A look at the calendar may explain what is going on here. The legacy INS initially eliminated the advance parole requirement for pending adjustment of status applicants, thus allowing international travel on the basis of valid L-1 or H-1B nonimmigrant visas, back on June 1, 1999, 64 Fed. Reg. 29,209. This was well before AC21 took effect on October 17, 2000. So, with that backdrop, let’s see how your clients are doing.

1. The first client armed with a receipt for an H-1B petition filed by a new employer should have no problem. Under the terms of AC21 § 105 (H-1B portability), the filing of the H-1B petition by the new employer conferred employment authorization on your client. H-1B portability provides all the work authorization that is required.

2. The second client, whose prospective employer waited until after he left the USA to file a new H­1B petition, did likely abandon his application. Under the terms of 8 CFR § 245.2(a)(4)(ii)(C), there was no previous work authorization that preceded departure from the US; the authorization flowing from H-1B portability sadly was untimely, coming too late to save the pending adjustment of status.

3. In the third case, using an H-1B visa for one employer to go to work for a different employer who has not filed an H-1B petition would probably be considered visa fraud. It is certainly true that, had such a new H-1B petition been filed, a valid H visa for the old employer could still be used, but sadly such are not the facts here. Memorandum from Michael Aytes, Ass’t Comm’r, Immigration and Naturalization Service, Validity of Certain Nonimmigrant Visas (Jul. 8, 1997), reprinted at 2 Bender’s Immigr. Bull. 640 (Aug. 1, 1997). Again, while the EAD may remain valid under adjustment of status portability, this is general or open market work authorization and not authorization to work as an H-1B or L-1 nonimmigrant.

4. For our L-1 friend, there is no L portability, of course, so any L-1 who invokes AC21 § 106(c) portability clearly needs advance parole to return. Travel without it under these facts is unauthorized, leading to loss of adjustment eligibility.

Now, as to your admirable though audaciously bracing disclosure in your post script, let me rely upon the sage counsel of my mentor, friend, and AC21 guru Naomi Schorr, known to baseball cognoscenti as “The Pride of the Yankees.” The Answer Man is informed by the expert insights in her article, Who Knows?, 15 Bender’s Immigr. Bull. 1387(Oct. 15, 2010). Relaxed, have you had the pleasure of reviewing 8 CFR § 245.2(a)(4)(ii)(B)? If not, then it is high time that you did:

The travel outside of the United States by an applicant for adjustment who is not under exclusion, deportation, or removal proceedings shall not be deemed an abandonment of the application if he or she was previously granted advance parole by the Service for such absences, and was inspected and paroled upon returning to the United States. …. (Emphasis added)

Now, in the case of your Scottish highlander, he had advance parole with him when he left the US, so he did not forfeit adjustment eligibility then. What about when he came back on his H-1B visa? He was certainly inspected when he came back, but was he also paroled? What about the return on the H-1B visa? Professor Schorr would also rightly remind us that someone in your client’s rather unfortunate predicament was not in H-1B status upon departure for purposes of 8 C.F.R. § 245.2(a)(4)(ii)(C). At the very least, it is an open question as to whether your client abandoned his adjustment of status application. Did he? In Professor Schorr’s quotable phrase, “Who knows?”

So you see Relaxed, perhaps your sense of repose may have to be adjusted a bit to fit these unexpected complexities. I am not saying you need to change all of your ways but, to quote the old Russian proverb that President Reagan made famous in his negotiations with Mikhail Gorbachev, it is prudent to “trust but verify.”