H and L Regulations Regarding Adjustment of Status (6-1-99)

[Federal Register: June 1, 1999 (Volume 64, Number 104)]
[Rules and Regulations]
[Page 29208-29212]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jn99-2]

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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 214 and 245

[INS No. 1881-97]
RIN 1115-AE96

Adjustment of Status; Continued Validity of Nonimmigrant Status,
Unexpired Employment Authorization, and Travel Authorization for
Certain Applicants Maintaining Nonimmigrant H or L Status

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This rulemaking amends and clarifies Immigration and
Naturalization Service regulations governing an H-1 and L-1
nonimmigrant's continued nonimmigrant status during the pendency of an
application for adjustment of status. This action incorporates into the
regulations existing Service policy statements regarding this issue. In
addition, this rule eliminates the requirement for those adjustment
applicants who maintain valid H-1 and L-1 nonimmigrant status, and
their dependent family members, to obtain advance parole prior to
traveling outside the United States. Finally, the Service is
considering expanding the ``dual intent'' concept to cover long term
nonimmigrants, in E, F, J, and M visa classifications, who are visiting
this country as traders, investors, students, scholars, etc.

DATES: Effective date: This interim regulation is effective July 1,
1999.

[[Page 29209]]

    Comment date: Written comments must be submitted on or before
August 2, 1999.

ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalizations Service, 425 I Street, NW., Room 5307, Washington, DC
20536. To ensure proper handling, please reference INS No. 1881-97 on
your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.

FOR FURTHER INFORMATION CONTACT: Frances A. Murphy, Adjudications
Officer, Residence and Status Services Branch, Office of Adjudications,
Immigration and Naturalization Service, 425 I Street, NW., Room 3214,
Washington, DC 20536, telephone (202) 514-3978.

SUPPLEMENTARY INFORMATION:

Why Is the Service Issuing This Regulation?

    This rule is being issued to codify previous Service policy
statements regarding the eligibility of H-1 and L-1 nonimmigrants, and
their dependent family members, to maintain and to extend their
nonimmigrant status while their applications for permanent residence
remain pending. This rule also addresses the issue of the eligibility
of these aliens to travel outside the United States without abandoning
their applications for status.

What Categories of Aliens May Maintain Nonimmigrant Status After
Having Filed for Adjustment of Status?

    Under Section 214(b) of the Immigration and Nationality Act, (Act),
most nonimmigrants who apply for adjustment of status to that of
permanent residents of the United States are presumed to be intending
immigrants and, therefore, are no longer eligible to maintain
nonimmigrant status. Section 214(h) of the Act, however, permits aliens
described in section 101(a)(15)(H)(i) and (L) of the Act, i.e.,
temporary workers in specialty occupations, intracompany managerial or
executive transferees, and their dependent spouses and children, to
maintain their nonimmigrant status during the pendency of their
applications for adjustment of status.
    In addition, the Service is considering expanding the dual intent
concept to cover other long term nonimmigrants who are visiting this
country as traders (E-1), investors (E-2), students (F-1, J-1 or M-1),
or scholars (J-1), etc. These nonimmigrants, who are typically
authorized to stay in this country for considerable lengths of time,
often need to make short overseas travels during their authorized stay.
Under the ``dual intent'' doctrine, these nonimmigrants would be able
to maintain valid nonimmigrant status and travel overseas without
advance parole while applying for adjustment of status.
    The Service has, traditionally, considered applying for adjustment
of status as relevant evidence in determining whether an alien has
abandoned the requisite nonimmigrant intent. Section 214(b) of the Act
does not, however, require the Service to hold this position as an
absolute rule. So long as the alien clearly intends to comply with the
requirements of his or her nonimmigrant status, the fact that the alien
would like to become a permanent resident, if the law permits this,
does not bar the alien's continued holding of a nonimmigrant status.
    The Service is interested in the public view on this matter and
would appreciate written comments.

How Does This Rule Affect Maintenance of H-1 and L-1 Nonimmigrant
Status?

    Section 214(h) of the Act specifically provides that the fact that
an H-1 or L-1 nonimmigrant is the beneficiary of an application for a
preference status filed under section 204 or has ``otherwise sought
permanent residence'' in the United States shall not constitute
evidence of an intent to abandon the foreign residence. The Service
interprets section 214(h) to mean that, in addition to the approval of
a labor certification or a preference visa petition, the mere filing of
an application for status shall not be the basis for denying an H-1 or
L-1 nonimmigrant's properly completed application (or that of their
dependent family members in H-4 or L-2 status) for extension of stay or
change of status within the H-1 or L-1 (or, as applicable, a H-4 or L-
2) classifications. A pending adjustment application, however, does not
relieve nonimmigrant H-1 and L-1 aliens of the requirement to comply
with the terms of their nonimmigrant classification, including
restrictions on periods of stay, change of employer, and engaging in
employment. For example, changing employers without first obtaining
approval from the Service will cause the alien to lose his or her valid
H-1 or L-1 nonimmigrant status.

What Are the Documentary Requirements for Travel Outside the United
States for H-1 and L-1 With Pending Applications for Adjustment of
Status?

    Current Service regulations at Sec. 245.2(a)(4)(ii) require that
all adjustment applicants obtain advance parole authorization prior to
traveling outside the United States. Prior to enactment of the Illegal
Immigration Reform and Immigrant
Responsibility Act of 1996 [IIRIRA],
such persons were deemed to be applicants seeking admission and were
subject to the grounds of excludability. The Service imposed the
advance parole requirement and the concomitant exclusion process in
order to maintain control over the re-entry of such aliens. With the
phasing out of exclusion proceedings under IIRIRA, however, the Service
believes it is now appropriate to amend its regulations to provide
fuller effect to section 214(h) of the Act by exempting H-1 and L-1
nonimmigrants with pending applications for adjustment of status (as
well as their dependent family members) from obtaining advance parole
authorization prior to traveling outside the United States. Generally,
such H-1 and L-1 nonimmigrants may be readmitted into the United States
in the same status provided they are in possession of a valid H-1 or L-
1 nonimmigrant visa (for those aliens not visa exempt), and the
original I-797 receipt notice for the application for adjustment of
status, and continue to remain eligible for H-1 or L-1 classification.
All other nonimmigrants with pending applications for status must
obtain advance parole authorization in accordance with
Sec. 245.2(a)(4)(ii) prior to traveling outside the United States.

Under What Section of the Regulations Would H-1 or L-1
Nonimmigrants be Granted Authorization for Continued Employment?

    H-1 and L-1 nonimmigrants filing applications for permanent
residence have two options with respect to work authorization, but the
choices have different consequences. Such aliens, of course, may
continue to work in accordance with the terms of their nonimmigrant
employment authorization, as provided in Sec. 274a.12(b)(9) or (12).
This means that, while their application for adjustment of status is
still pending, their employment is limited to the employer for whom the
current nonimmigrant visa petition was approved.
    In the alternative, when filing an application for permanent
residence, an

[[Page 29210]]

H-1 or L-1 nonimmigrant may also file a form I-765 application for
unrestricted employment authorization as provided in
Sec. 274a.12(c)(9). After receiving an Employment Authorization
Document, the alien would be eligible to work for any employer, and
this work authorization would continue as long as the alien's
application for adjustment of status remains pending. However, such an
alien should bear in mind that, by accepting employment with an
employer other than the one which filed the approved H-1 or L-1
nonimmigrant petition under Sec. 274a.12(c)(9), the alien would no
longer be in compliance with the requirements of the H-1 or L-1
nonimmigrant status.
    If the alien's application for adjustment of status is ultimately
approved, then it would not matter which option the alien had followed.
However, if the application for adjustment is denied, then the alien's
status would depend on which option was followed. If the alien had
continued to work for an approved employer under the terms of his or
her H-1 or L-1 status, and otherwise properly maintained such status,
the alien would still retain his or her nonimmigrant status, if that
status had not yet expired according to the established terms. However,
an alien who had chosen to work for a different employer during the
period that his or her application for adjustment of status was pending
would have thereby lost his or her H-1 or L-1 nonimmigrant status.
Thus, if the alien's application for adjustment of status is denied,
the alien would no longer be in a lawful status and would be subject to
removal proceedings. In addition, a dependent family member who had
chosen to engage in unrestricted employment while the application for
adjustment of status was pending would lose his or her H-4 or L-2
nonimmigrant dependent status. Therefore, if the principal's
application for adjustment of status is denied, such dependent family
members would also not be in a lawful status and could not revert back
to H-4 or L-2 dependent status.

Filing of I-765 for H's and L's Seeking Employment Authorization
Under Sec. 274a.12(c)(9)

    H-1 and L-1 nonimmigrants filing adjustment applications who intend
to seek open-market employment authorization under Sec. 274a.12(c)(9)
should file Form I-765 concurrently with the I-485 to avoid a lapse of
employment authorization. After filing the Form I-765, the H-1 or L-1
nonimmigrant must wait until he or she receives the employment
authorization document before the alien may enter into open-market
employment. The INS Service Centers will continue to entertain requests
for expeditious handling of Form I-765 employment authorization
requests in accordance with prevailing criteria. Expeditious handling
of a request for employment authorization under Sec. 274a.12(c)(9),
however, may be insufficient to ensure that a lapse in employment
authorization does not occur when the application for status is filed
near the expiration of H-1 or L-1 nonimmigrant status.

What Are the Effects of Denial of I-485 on Employment Authorization
and Nonimmigrant Status?

    An alien whose adjustment of status application is denied but who
has continuously maintained his or her H-1 or L-1 nonimmigrant status
while the adjustment application was pending, may continue to work in
accordance with the terms of the nonimmigrant visa. If the adjustment
of status application is denied, any employment authorization granted
to the alien under Sec. 274a.12(c)(9) will be subject to termination
pursuant to Sec. 274a.14(b). Further, if the alien is not maintaining
his or her H-1 or L-1 nonimmigrant status, he or she will be subject to
removal proceedings.

How Does the Approval of an Application for Adjustment of Status
During the Alien's Absence From the United States Affect His or Her
Readmission?

    In accordance with 8 CFR 211.1, a Form I-797 approval notice for an
adjustment of status application is insufficient to establish an
arriving alien's entitlement to lawful permanent residence. An H-1 or
L-1 nonimmigrant (or a dependent family member) whose application for
adjustment of status was approved during the alien's absence from the
United States will be granted deferred inspection in accordance with
Sec. 235.2(b) upon presentation of a valid I-797 notice of approval of
the application for status. Such deferred action shall be for the
purpose of providing conclusive evidence that the alien's status has in
fact been adjusted to that of a lawful permanent resident.

Good Cause Exception

    The Service's implementation of this rule as an interim rule, with
provisions for post-promulgation public comments, is based on the
``good cause'' exceptions found at 5 U.S.C. 533(b)(3)(B), and (d)(3).
The immediate implementation of this interim rule without prior notice
and comment is necessary to: (1) Clarify existing Service policy with
respect to adjustment applicants who need to travel abroad while their
application is pending, (2) provide a benefit to U.S. employers by
facilitating the continued employment of nonimmigrant H-1 and L-1
workers who have filed for adjustment of status, and (3) allow such
workers more flexibility to travel. The Service will consider fully all
comments submitted during the comment period.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that this rule
will not have a significant economic impact on a substantial number of
small entities because it affects individuals by allowing them to
continue to be employed and to travel while seeking adjustment of
status. Any effect on small entities that employ such nonimmigrants
will be beneficial.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year, and will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of the United States-based companies to compete with
foreign-based companies in domestic and export markets.

Executive Order 12866

    This rule is not considered by the Department of Justice,
Immigration and Naturalization Service, to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review, and the Office of Management and Budget
has waived its review process under section 6(a)(3)(A).

[[Page 29211]]

Executive Order 12612

    The regulation adopted herein will not have substantial direct
effects on the States, on the realtionship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.

Executive Order 12988 Civil Justice Reform

    This interim rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of E.O. 12988.

List of Subjects

8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, Foreign
officials, Health professions, Reporting and recordkeeping
requirements, Students.

8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:

PART 214--NONIMMIGRANT CLASSES

    1. The authority citation for part 214 continues to read as
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,
1281, 1282; 8 CFR part 2

    2. Section 214.2 is amended by revising paragraphs (h)(16)(i) and
(l)(16) to read as follows:

Sec. 214.2  Special requirements for admission, extension, and
maintenance of status.

* * * * *
    (h) * * *
    (16) * * * (i) H-1 classification. An alien may legitimately come
to the United States for a temporary period as an H-1 nonimmigrant and,
at the same time, lawfully seek to become a permanent resident of the
United States provided he or she intends to depart voluntarily at the
end of his or her authorized stay. The filing of an application for or
approval of a permanent labor certification, an immigrant visa
preference petition, or the filing of an application for adjustment of
status for an H-1 nonimmigrant shall not be a basis for denying:
    (A) An H-1 petition,
    (B) A request to extend an H-1 petition,
    (C) The H-1 alien's application (and that of their dependent family
members) for admission,
    (D) The H-1 alien's application (and that of their dependent family
members) for change of status to a different H-1 or L classification,
or a dependent of an H-1 or L nonimmigrant, or
    (E) The H-1 alien's application for extension of stay, (and that of
their dependent family members).
* * * * *
    (l) * * *
    (16) Effect of filing an application for or approval of a permanent
labor certification, preference petition, or filing of an application
for adjustment of status on L-1 classification. An alien may
legitimately come to the United States for a temporary period as an L-1
nonimmigrant and, at the same time, lawfully seek to become a permanent
resident of the United States provided he or she intends to depart
voluntarily at the end of his or her authorized stay. The filing of an
application for or approval of a permanent labor certification, an
immigrant visa preference petition, or the filing of an application of
readjustment of status for an L-1 nonimmigrant shall not be the basis
for denying:
    (i) An L-1 petition filed on behalf of the alien,
    (ii) A request to extend an L-1 petition which had previously been
filed on behalf of the alien;
    (iii) An application for admission as an L-1 nonimmigrant by the
alien, or as an L-2 nonimmigrant by the spouse or child of such alien;
    (iv) An application for change of status to H-1 or L-2 nonimmigrant
filed by the alien, or to H-1, H-4, or L-1 status filed by the L-2
spouse or child of such alien;
    (v) An application for change of status to H-4 nonimmigrant filed
by the L-1 nonimmigrant, if his or her spouse has been approved for
classification as an H-1; or
    (vi) An application for extension of stay filed by the alien, or by
the L-2 spouse or child of such alien.
* * * * *

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE

    3. The authority citation for part 245 continues to read as
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1255, sec. 202, Pub. L.
105-100 (111 Stat. 2160, 2193); and 8 CFR part 2.

    4. In Sec. 245.2, paragraph (a)(4)(ii) is revised to read as
follows:

Sec. 245.2  Application.

    (a) * * *
    (4) * * *
    (ii) Under section 245 of the Act. (A) The departure from the
United States of an applicant who is under exclusion, deportation, or
removal proceedings shall be deemed an abandonment of the application
constituting grounds for termination of the proceeding by reason of the
departure. Except as provided in paragraph (a)(4)(ii)(B) and (C) of
this section, the departure of an applicant who is not under exclusion,
deportation, or removal proceedings shall be deemed an abandonment of
the application constituting grounds for termination of any pending
application for adjustment of status, unless the applicant was
previously granted advance parole by the Service for such absences, and
was inspected upon returning to the United States. If the adjustment
application of an individual granted advance parole is subsequently
denied the individual will be treated as an applicant for admission,
and subject to the provisions of section 212 and 235 of the Act.
    (B) The travel outside of the United States by an applicant for
adjustment who is not under exclusion, deportation, or removal
proceedings shall not be deemed an abandonment of the application if he
or she was previously granted advance parole by the Service for such
absences, and was inspected and paroled upon returning to the United
States. If the adjustment of status application of such individual is
subsequently denied, he or she will be treated as an applicant for
admission, and subject to the provisions of section 212 and 235 of the
Act.
    (C) The travel outside of the United States by an applicant for
adjustment of status who is not under exclusion, deportation, or
removal proceeding and who is in lawful H-1 or L-1 status shall not be
deemed an abandonment of the application if, upon returning to this
country, the alien remains eligible for H or L status, 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,
is in possession of a valid H or L visa (if required) and the original
I-797 receipt notice for the application for adjustment of status. The
travel outside of the United States by an applicant for adjustment of
status who is not under exclusion, deportation, or removal proceeding
and who is in lawful H-4 or L-2 status shall not be deemed an
abandonment of the application if the spouse or parent of such alien
through whom the H-4 or L-2 status was obtained is maintaining H-1 or
L-1 status and the alien remains otherwise eligible for H-4 or L-2
status, and, the alien is in possession of a valid

[[Page 29212]]

H-4 or L-2 visa (if required) and the original copy of the I-797
receipt notice for the application for adjustment of status.
* * * * *
    Dated: May 12, 1999.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 99-13759 Filed 5-28-99; 8:45 am]
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