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

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 Untied 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 change of status to a different H-1 or L classification,

or a dependent of an H-1 of 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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