 NEW RULES ON MAINTAINING STATUS AND TRAVEL ABROAD FOR H AND L NONIMMIGRANTS
A recently issued INS rule should make the permanent resident application process easier for those holding valid H-1 and L-1nonimmigrant visas. The rule become effective July 1, 1999, and will be open for public comment until August 2, 1999.
Nonimmigrant visas generally require the nonimmigrant intend to return to his home country. For most nonimmigrants, application for permanent residence is conclusive evidence that they intend to stay in the US. There is an exception to this presumption for holders of H-1 and L-1 nonimmigrant visas found in section 214(h) of the Immigration and Nationality Act. So long as the applicant intends to comply with the requirements of the nonimmigrant visa, attempting to become a permanent resident of the US will not cause them to be out of status. In this new rule, the INS mentions that it is considering extending this same presumption of “dual intent” to other classes of nonimmigrant visa holders who are allowed to spend many years in the US, such as E-1 traders, E-2 investors, F-1, J-1 and M-1 students, and J-1 scholars.
Because application for permanent residence does not end the applicant’s H-1 or L-1 nonimmigrant status, so long as the applicant otherwise complies with the requirements of the visa, the INS is clarifying its opinion on the impact of section 214(h). Prior to 1996, an applicant for permanent residence who has left the US is treated as an applicant seeking admission, and is thus subject to the rules of exclusion. Therefore, before traveling outside the US, advance parole documents were needed. After 1996, the exclusion process has been eliminated. In light of this, the INS has determined that section 214(h) is more effectively implemented if advance parole is no longer required. Admission to the US will be given upon presentation of a valid H-1 or L-1 visa, the original I-797 receipt notice for the permanent residence application, and continuing nonimmigrant eligibility.
The new rule also points out differences in routes of employment authorization and their differing immigration consequences. H-1 and L-1 nonimmigrants applying for permanent residence have two routes of employment authorization. First, to stay with the employer for whom the nonimmigrant visa was approved, and second, to seek unrestricted employment by filing Form I-765. This basically means that one can accept a moonlighting position without a separate work visa and without giving up the primary nonimmigrant work visa. It does NOT mean that one can quit the first employer prior to approval for permanent residency. If the nonimmigrant works only for the original employer and otherwise complies with the terms of the nonimmigrant visa, then if the permanent resident application is denied, the alien is still in lawful nonimmigrant status.
This rule will create new options for H-1 and L-1 nonimmigrant visa holders, but as with all areas of immigration law, they will need to consider all the possibilities before acting in reliance on it.
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