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INS MODIFIES POSITION ON H-1 AND L-1 NONIMMIGRANTS WITH PENDING ADJUSTMENT APPLICATIONS
The INS has released yet another memo providing field guidance on dealing with the admission and status of H-1 and L-1 nonimmigrants who have filed applications for adjustment of status.  This memo supersedes all earlier memos.  While the INS hopes to have a formal regulation finalized in the near future that will provide the law in this situation, in the meanwhile the guidance found in this memo is controlling.  The memo addresses many situations. 
First, repeated memos in this area have created confusion about the employment requirements of employment-based immigrants.  This memo makes clear that the dual intent rules allowing a person to pursue adjustment of status while maintaining nonimmigrant status do not in any way relieve a person of their obligation to establish their intent to work for the petitioning employer after gaining permanent residency.  While the applicant can obtain an employment authorization document through the adjustment application and thereby engage in “open market employment,” they must show the INS that they intend to work for the petitioning employer. 
Some INS officers have taken the position that obtaining an EAD in and of itself violates the underlying H or L nonimmigrant status.  This memo clarifies that it does not, nor does using the EAD to work.  However, using the EAD to secure employment and leaving the employer who petitioned for the underlying nonimmigrant visa would be a violation of nonimmigrant status. 
The memo states that H and L nonimmigrants that enter the US on advanced parole can apply for an extension of their nonimmigrant status so long as there is a valid underlying petition.  If the application for an extension is granted, the alien’s parole is revoked and they are admitted in the nonimmigrant status.  Similarly, if the alien had previously been admitted in parole status but still has a valid H or L visa, they can enter the US in H or L status. 
When an H or L nonimmigrant enters the US on advanced parole, this will lead to the revocation of nonimmigrant status.  Therefore, the nonimmigrant is not engaging in unauthorized employment by working for the employer who petitioned for the nonimmigrant visa even after having been admitted in parole status. 
The memo clarifies that when an H or L nonimmigrant possesses both a valid nonimmigrant visa and an advanced parole document, it is their choice which document they present when applying for admission to the US.  However, the INS officer should tell the nonimmigrant that they no longer need the advanced parole and can reenter the US in the future on a valid nonimmigrant visa.  If for some reason the alien is no longer in proper nonimmigrant status, they should be admitted using the advanced parole document.