INS MEMO FURTHER CLARIFIES NEW RULES ON ADVANCE PAROLE APPLICATIONS FOR H-1B AND L-1 VISA HOLDERS

In June, the INS issued a regulation abandoning the longstanding policy that H-1B and L-1 nonimmigrant visa holders applying to adjust to permanent residency in the US must reenter the US with an advance parole document or risk being deemed to have abandoned their green card applications. The agency has now issued an internal memorandum clarifying various aspects of the regulation.

The memo first notes that immigration officers are not to deny an application for an extension or change of H-1 or L-1 status merely because an adjustment of status application is pending.

The memo also makes clear that H-1 and L-1 applicants need not seek advance parole to travel abroad. The H-1 or L-1 visa holder may seek to be readmitted to the US in the same status provided that he or she has a valid H-1 or L-1 visa (for those not visa exempt), has the original I-797 receipt notice for the I-485 and remains eligible for H-1 or L-1 classification.

The INS emphasizes that H-1 and L-1 nonimmigrants must still follow all of the regulations in order to maintain their visa status. So, for example, changing jobs without properly applying for a change of status would cause the loss of the H-1B visa status even though the individual may remain working legally under an employment authorization document tied to the adjustment application. This can be a problem if the adjustment application is denied later on since the applicant would no longer be in legal status.

The INS also addresses the issue of what to do when an adjustment of status application is approved while the H-1 or L-1 visa holder is outside the US. According to the INS, 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 family member will be granted deferred inspection upon showing the I-797 approval notice. The applicant would then complete processing at a local INS office.

The INS is issuing this policy because H-1 and L-1 visas are "dual intent" categories under the Immigration and Nationality Act. Normally, nonimmigrant visa holders who apply for adjustment of status applications are presumed to be intending immigrants and are no longer eligible to maintain nonimmigrant status. However, H-1 and L-1 are not subject to this presumption under the law.

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