The INS recently issued a memorandum eliminating the requirement that H and L nonimmigrants obtain advance parole before traveling abroad once an “adjustment of status” or green card application has been filed. Continuing a trend in the liberalization of rules for H and L nonimmigrants, the INS is showing a preference for the business community, making the H and L visas even more advantageous. Additional policy memorandum points warrant, however, that certain precautions should be taken to avoid any problems during the adjustment of status process.
The L-1, intracompany transferee visa, and H-1B professional working visa, have long been the preferred visas for U.S. companies in hiring professionals from overseas or transferring employees from foreign affiliated offices. Due to the relatively long period of availability in either H or L status, 6 and 7 years respectively, and because workers in such status often later seek permanent resident status, INS recognizes the doctrine of “dual intent” for the H and L categories. “Dual Intent” simply means that, unlike a visitor or student, an H or L worker can intend both to stay in the United States temporarily and to remain permanently. In keeping with this liberal treatment, the INS memo instructs that an application for an extension of H or L status should not be denied simply because the visa holder has an application for adjustment of status pending.
Similarly, Once an H or L visa holder has an adjustment of status application pending, he will no longer need to obtain advance parole before traveling abroad, as long as he has a valid visa and an original receipt for the adjustment of status application. To remain in status, however, the H or L nonimmigrant must still comply with the terms of the visa classification, such as the limitation on changing employers without prior INS approval.
Workers in H or L status also have two choices with respect to work authorization. Any alien in such status is authorized to work incident to his H or L status, but only for the sponsoring employer. Generally, any applicant for adjustment of status is eligible for “open market” work authorization, permitting the alien to accept employment from any U.S. employer. The H or L applicant for adjustment will lose his H or L status if he changes employers, even though authorized to work, because the H or L categories are employer specific. While this may not cause an immediate concern, a big problem arises if the adjustment of status application is denied, in which case the “out-of-status” professional will find himself facing removal proceedings.
In order to hedge all bets, it seems that the prudent course of action is to remain in valid nonimmigrant status as long as possible, especially given the processing delays in adjustment of status applications. People commonly change employers more than once in any two-year period, due to today’s competitive employment market. Talented foreign workers should take pains to not allow a legal technicality jeopardize their futures in the United States.