Maintaining H or L Status While Green Card is Pending
FAQs on Travel, Employer Changes, & Immigration Status
When the Visa Bulletin progresses and green card availability opens up after years of backlogs, many individuals in the U.S. on H or L status become eligible to file Form I-485, and along with it, Form I-131, Application for Travel Document, and Form I-765, Application for Employment Authorization. While the I-485 or application for permanent residence is pending, it is possible for individuals to maintain both their nonimmigrant H or L status and their “pending I-485” status, which also provides the ability to apply for Advance Parole (AP) with Form I-131 and an Employment Authorization Document (EAD) with Form I-765. Many ask: should I maintain my H-1B status after getting an EAD/AP during the I-485 process? Usually, the answer is yes! The H-1B or L-1 visas provide some additional travel flexibility when Form I-131 is taking months for processing.
Changing Employers & Traveling
Some employees may be waiting for an EAD so they can change employers. However, if you work for another entity other than your existing H-1B employer, you would violate your H-1B status, invalidating the H-1B and the dependent H-4.
Typically, if an individual has a pending I-485, he or she must apply for Advance Parole, which when approved grants the individual permission to depart the U.S. for international travel without abandoning their green card application. If an individual begins utilizing their EAD and departs the country without AP approval, they will likely be seen as abandoning their I-485 application and the AP application.
However, if the individual is maintaining their underlying H-1B status through the entirety of the pendency of the I-485, he or she may be able to travel using the nonimmigrant visa. If the following conditions are met, the adjustment of status (I-485) will not be deemed abandoned:
- The employee is in a lawful H-1 or L-1 status upon departure from the U.S. and
- If, upon returning to the U.S. the alien remains eligible for H or L status, and
- The employee is coming to resume employment with the same employer for whom he or she had previously been authorized to work as an H-1 or L-1 nonimmigrant, and
- The employee is in possession of a valid H or L visa.
If you begin using your I-485 EAD to work for another employer, then you must wait for Advance Parole approval to prevent the abandonment of the I-485 because you would no longer be in valid H or L status.
Other Frequently Asked Questions
Q: What happens to my I-485, I-765, and I-131 applications if I travel abroad with a nonimmigrant status while they are in progress?
A: As long as you are entering using your nonimmigrant status and you meet the four criteria listed above, your I-485 and EAD will continue to be processed, but your Advance Parole will be abandoned.
Q: What if I have the EAD, but I don’t use it? Will this affect my H-1B status?
A: You are permitted to hold an EAD, but not use it (and use the H-1B instead to work). This would not affect your H-1B status.
Q: What if I work using the EAD?
A: USCIS guidance says that if you use the EAD to leave the employer listed on the H or L petition, you violate the H or L status. This means that if you have a spouse, he/she would no longer be in H-4 status (or L-2 status, if you are on L). You still remain in a valid status as an adjustee, however, you would need to make sure that your EAD stays valid: this means renewing the EAD once a year, and making sure that it’s approved before the ending validity date of the current EAD. Otherwise, your work authorization may be interrupted. Finally, if you do remain in valid H-1B status and your adjustment of status (green card application) is denied, you would still have the H-1B status to fall back on. If you were to use the EAD to work for someone other than your H-1B employer, you would not have the H-1B status to fall back on, if the adjustment were denied.
Q: Can my spouse use the EAD to work while I use the H-1B to work?
A: Yes, your spouse can use the EAD to work and it will not affect your H-1B status.
Q: I have a valid H visa (or valid L visa) and I have applied for the green card. Do have to use the AP to re-enter the US?
A: If you have a valid H or L visa, you may use either the visa or the AP documents to reenter the US after you have traveled overseas. This is true even if you have a green card application pending.
Q: What if I use the advance parole to reenter the US? Am I still in valid H (or L) status?
A: According to a memo issued by the agency that is now the USCIS (legacy INS), a person who was in valid H or L status, but who used the AP to enter the US “may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition.” The memo also indicates that if the person’s H-1 or L-1 status would not have expired (had the person not left the US and re-entered on the AP), and the person will be working for the same H or L employer, the person does not need to use the EAD to work after re-entering on AP. Instead, he/she can use the H or L to work, even though he/she used the AP to enter the US. This strategy may be useful if the H or L employee does not want to have the visa stamped overseas to re-enter, but still wants to maintain the H or L status.
The documents that you use to work and travel can affect your status. However, the good news is that if you have filed for the green card and maintain valid H or L status, you may be able to leverage your options to take advantage of the best of both. As always, you should consult an experienced immigration attorney to develop the best strategy for your particular situation. Contact us at firstname.lastname@example.org to apply for your work and travel permits along with your adjustment of status.
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