Effect of Travel While in H1B/L-1 Status and Pending I-485

There are some questions concerning those who wish to return to the U.S. with H1-B or L-1 immigration status who have an approved AP (Advance Parole) based on a pending I-485 (Adjustment of Status application).

The H1-B typically involves professionals such as college professors, accountants, doctors or engineers. The L-1 status means they wish to work full-time for a company or institution in the U.S.

The purpose of the I-512 or AP (Advance Parole) is to allow a person with H1-B or L-1 status to travel abroad while his or her I-485 (Adjustment of Status Application) is being processed. Upon return to the U.S., they can resume the application process without interruption.
However, the process is not as simple as it would appear. Most believe that by having a valid AP ensures there will be no trouble in resuming the application with their I-485 application. This is not always the case. The problem arises out of the fact that their H-1B or L-1 status may no longer be valid. This happens because the AP is not a guarantee to be readmitted into the U.S. It is, as it states, a parole, not an admission slip. Readmission into the country is on a case by case decision based on the particular circumstances regarding their reason for leaving the U.S.

A big factor in this determination process is the I-94 form (Arrival/Departure Record). Whenever someone of H1-B or L-1 status reenters the U.S. using an AP, the I-94 form is updated along with a note stating that he or she is paroled.

Parolee may work for H1-B or L-1 Employer without Valid EAD

However, things are further complicated by another ruling of the INS. On May 16, 2000, they stated that a person with a valid AP under H1-B or L-1 status can continue to work for his or her company in the U.S. if his or her right to employment would not have expired had the person not left the country and returned with an AP. Inotherwords, their employment by the company is not terminated, even if they do not have a valid EAD (Employment Authorization Document). This means that such an individual would be considered an immigrant. But, they would still be able to work for the company with H1-B or L-1 status.

Another way of looking at this is to consider both documents as authorization for employment: the approved, unexpired H1-B or L-1 petition and the I-94 (Arrival/Departure Record). While it is true, the person would no longer have the H1-B or L-1 status after they return to the U.S., they will still have certain benefits of that status. One should also realize that, if this person’s I-485 (Adjustment of Status application) is turned down, he or she would lose the H1-B or L-1 status. Furthermore, if a person decides to return to his or her job in the U.S. by using the AP, it can be used as authorization. Therefore, it is not necessary to have a separate EAD. Also, by the employee having a valid AP, the employer will not need to file an I-9 (Employment Eligibility Verification form) before the H1-B or L-1 expires.

EAD is Safer / H1-B Makes Extensions Possible

To be on the safe side, however, we recommend that the H1-B or L-1 employee have an EAD in case they are questioned about this. Furthermore, the employer would not be required to file a new I-9 since the H1-B or L-1 would still be in effect. Likewise, the employee can file for an extension on the H1-B or L1 even after he or she has returned to the U.S. using the AP.

Parolees Resume H1-B or L-1 Status upon Admission or upon Approval of H/L Petition

When someone with nonimmigrant H1-B or L1 status has left the U.S. and returns using a valid AP, he or she can apply for an extension of this status. Once the CIS (Citizenship and Immigration Service) approves the extension, the employee will have his or her H1-B or L-1 status reinstated provided they have returned to work.

Similar Result if Employer Files H1-B Amendment

Likewise, if the employer files an H1-B Amendment, the employee’s status would be reinstated. Also, if an employee works for an H1-B employer and then goes to work for another company, he or she can seek an extension of the H1-B status. His or her status would also be retained by going overseas and then, returning with a valid H or L visa and having their I-94 card stamped at the airport.

In these instances, the H or L status would be restored even if their I-485 was denied. Therefore, to keep one’s H1-B or L1 status, there are several ways to do it even if an AP is used to return to the U.S. This is especially important for people with H1-B or L1 status that must be extended soon after returning to America.

This is also true for people who must travel due to emergency circumstances or quick trips abroad, then later needs an H or L visa on a longer stay out of the country when there is more time to apply for a visa at the embassy.

Conclusion

There are many choices to make when a person with an H or L status has an I-485 application pending and wishes to travel out of the U.S. Undesirable consequences might arise if the proper decisions are not made. Therefore, we advise someone under these circumstances to consult with an experienced and knowledgeable attorney before making any trips outside the country.

Furthermore, it is wise to request an AP immediately upon entering the U.S. because the process will take several months to get approved. That way, you will have it should you ever need to travel abroad with an H or L status.