ADJUSTMENT OF STATUS
For H & L Visaholders
INS Field Memorandum Regarding Adjustment of Status for H and L Visaholders
(May 2000)
U.S. Department of Justice
Immigration and Naturalization Service
425 I Street NW
Washington, DC 20536
HQADJ 70/ 2.8.6, 2.8.12, 10.18
AD 00-03
AMENDED VERSION
MEMORANDUM FOR
REGIONAL DIRECTORS
SERVICE CENTER DIRECTORS
DISTRICT DIRECTORS
OFFICERS IN CHARGE
ASYLUM DIRECTORS
PORT DIRECTORS
FROM:
MICHAEL D. CRONIN
ACTING ASSOCIATE COMMISSIONER
OFFICE OF PROGRAMS
SUBJECT: AFM Update: Revision of March 14, 2000 Dual Intent Memorandum
This memorandum supersedes and amends the March 14, 2000 memorandum on
dual intent for H-1 and L-1 nonimmigrants with pending applications
foradjustment of status, which changes the Adjudicator's Field Manual,
Chapter 23.
Please note that the Service intends to address these issues
definitively when the Service finalizes the interim rule published on June 1
, 1999, at 64 Fed. Reg. 29,208 (1999). When the final rule enters into force
, the final rule, not this memorandum, will be controlling.
1. In Chapter 23 of the Adjudicator's Field Manual, the questions
and answers added at APPENDIX 23-4, entitled FREQUENTLY ASKED QUESTIONS
ABOUT TRAVEL OUTSIDE THE UNITED STATES BY AN H-I OR L-1 NONIMMIGRANT WHO HAS
APPLIED FOR ADJUSTMENT OF STATUS: by the March 14, 2000 memorandum, are
removed and replaced with the questions and answers below:
1. If an H-1 or L-1 nonimmigrant has filed for adjustment of status
under an employment-based preference category that requires an offer of
employment in the United States, does the interim rule affect the applicant'
s responsibility to establish his/her intent to work for the petitioning
entity?
No. If an H-1 or L-1 has filed for adjustment of status under an
employment-based preference category that requires an offer of employment in
the United States, the applicant still has the responsibility of
establishing his/her intent to work for the petitioning entity after
becoming a permanent resident. Neither the rule nor the guidance has
modified this requirement or the corresponding requirement that the employer
establish his/her intent to employ the applicant.
In the interim rule and initial guidance, the term "open-market
employment" was used to mean unrestricted access to employment. Applicants
with pending applications for adjustment of status are eligible to apply for
an employment authorization document (EAD). With an EAD, an alien has
access to unrestricted employment, the "openmarket". However, if the
applicant is adjusting status under an employment-based preference category
that requires an offer of employment in the United States, the fact that an
applicant is able to work in the open-market does not alter the applicant's
. responsibility to demonstrate an intent to work for the petitioning
employer.
2. If an H-1 or L-1 nonimmigrant or H-4 or L-2 dependent family member
obtains an EAD based on their application for adjustment of status but does
not use it to obtain employment, is the alien still maintaining his/her
nonimmigrant status?
Yes. The fact that an H or L nonimmigrant is granted an EAD does not
cause the alien to violate his/her nonimmigrant status. There may be
legitimate reasons for an H or L nonimmigrant to apply for an EAD on the
basis of a pending application for adjustment of status. However, an H-I or
L-1 nonimmigrant will violate his/her nonimmigrant status if s/he uses the
EAD to leave the employer listed on the approved 1-129 petition and engage
in employment for a separate employer.
3. If an H-1 or L-1 nonimmigrant has traveled abroad and was paroled
into the United States via advance parole, the alien is accordingly in
parole status. Does this interim rule allow him or her to now apply for an
extension of nonimmigrant status?
Until the final rule is published, an alien who was an H-1 or L-1
nonimmigrant, but who was paroled pursuant to a grant of advance parole, may
apply for an extension of H-1 or L-1 status, if there is a valid and
approved petition. If the Service approves the alien's application for an
extension of nonimmigrant status, the decision granting such an extension
will have the effect of terminating the grant of parole and admitting the
alien in the relevant nonimmigrant classification.
4. If an H-1 or L-1 nonimmigrant has traveled abroad and reentered the
United States via advance parole, the alien is accordingly in parole status.
How does the interim rule affect that alien's employment authorization?
A Service memorandum dated August 5, 1997, stated that an "adjustment
applicant's otherwise valid and unexpired nonimmigrant employment
authorization... is not terminated by his or her temporary departure from
the United States, if prior to such departure the applicant obtained advance
parole in accordance with 8 CFR 245.2(a)(4)(ii)." The Service intends to
clarify this issue in the final rule. Until then, if the alien's H-1 or L-1
employment authorization would not have expired, had the alien not left and
returned under advance parole, the Service will not consider a paroled
adjustment applicant's failure to obtain a separate employment authorization
document to mean that the paroled adjustment applicant engaged in
unauthorized employment by working for the H- I or L-1 employer between the
date of his or her parole and the date to be specified in the final rule.
5. Should an alien returning to the United States from travel abroad who
has a valid 1-512 and a valid H-1 or L-1 nonimmigrant visa be paroled in or
readmitted in H-1 or L-1 status?
If an alien has a valid H-1or L-1 nonimmigrant visa and is eligible for
H-1 or L- 1 nonimmigrant status and also has a valid Form I-512, he or she
may be readmitted into H-1 or L-1 status or be paroled into the United
States. It is the alien's prerogative to present either document at
inspection. However, if an alien presents both a valid H-1 or L-1
nonimmigrant visa and a valid Form I-512, and the alien is eligible for the
H-1 or L-1 nonimmigrant classification, the Service should inform the alien
that H-1 and L-1 nonimmigrants no longer need to use advance parole to
preserve pending applications for adjustment of status and should admit the
alien in H-1 or L-1 nonimmigrant status. The fact that an alien has applied
for advance parole and received Form I-512 does not compel him or her to use
the advance parole.
If the alien is not admissible as an H- I or L-I nonimmigrant, then he
or she cannot be readmitted as an H- I or L-I nonimmigrant. Instead, such an
alien may be paroled into the United States.
6. Is an alien who has a multiple entry I-512 and who has previously
been paroled into the United States now eligible for admission as an H-1 or
L-1 if he or she is still in possession of a valid H-1 or L-1 visa?
Yes, the alien may be admitted as an H-1 or L-1. However, aliens
returning from abroad may only be admitted as an H-1 or L-1 when they have a
valid H-1 or L-1 visa (unless visa exempt), remain eligible for H-1 or L-1
classification, and, where there has been a recent change of employer or
extension of stay, have evidence of an approved I-129 petition in the form
of a Notice of Action, Form I-797, indicating approval or a notation on the
nonimmigrant visa indicating the petition number and the employer's name. If
they do not meet these criteria, then they use their I-512.
In Chapter 15.4 of the Inspector's Field Manual, the Special
Note A for nonimmigrant classification H-1 B should be revised to read as
follows:
(A) Foreign residence requirement. H-1 B does not have to
establish he or she has a foreign residence. For information pertaining to
dual intent, see AFM Appendix, 23-4.
In Chapter 15.4 of the Inspector's Field Manual, add Special
Note E for nonimmigrant classification L-1 to read as follows:
(B) Dual intent. For discussion of applicability of dual intent
, see AFM Appendix 23-4.
Field Inquiries
All operational regional program units should familiarize themselves
with this memorandum and related procedures in order to be responsive to any
inquiry from the field. Questions regarding this memorandum may be directed
, through appropriate supervisory channels to HQADN. For issues concerning H
or L status, contact John Brown or Irene Hoffman, respectively, at 202-353-
8177. For issues concerning advance parole, contact Michael Valverde at 202-
514-4754.
