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New Rule Exempting H-1s and L-1s from Advance Parole

The INS published an interim rule on June 1, 1999 that permits individuals in valid H-1 and L-1 status, who have applied for adjustment of status, to travel without advance parole. The rule took effect on July 1, 1999.

Travel and advance parole. The new rule clarifies that an H-1 or L-1 nonimmigrant who files for adjustment of status may maintain nonimmigrant status during the pendency of the application. The rule also exempts H-1 and L-1 nonimmigrants remaining in valid status with pending adjustment of status applications (as well as their dependent family members remaining in valid status) from having to obtain advance parole prior to traveling outside the United States.  Such individuals can be re-admitted on the H-1 or L-1 visas (or the dependent visas).  The rule advises that such individuals re-entering the United States should also have their I-797 filing receipts available as proof that the adjustment application has been filed.

Impact of employment options. H-1 and L-1 visa holders may continue to work pursuant to the terms of their visas upon filing for adjustment of status. Such H-1s and L-1s also have the option of applying for employment authorization, what the Service refers to as "open market work authorization." Under open market authorization, the adjustment applicant may work for another employer. If he or she chooses to work for employers not authorized by the H-1 or L-1 visa terms, however, and thereafter wishes to travel, advance parole will be required; the applicant would no longer be considered to be in valid H-1 or L-1 status.

If an applicant’s adjustment of status application is denied, and H-1 or L-1 status is not maintained, the applicant would no longer be considered in lawful immigration status and could be subject to removal proceedings. However, if the adjustment applicant continuously maintains his or her H-1 or L-1 nonimmigrant status, and the adjustment is denied, such an applicant may continue to work in accordance with the terms of the nonimmigrant visa. Generally, open market work authorization will terminate if an adjustment application is denied.

Dependent family member who choose to engage in open market work while an adjustment application is pending will lose nonimmigrant dependent status, and cannot revert to that status, even if the principal applicant had maintained valid nonimmigrant status throughout the pendency of the application.

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