[Federal Register: June 1, 1999 (Volume 64, Number 104)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 214 and 245
[INS No. 1881-97]
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.
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.
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
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).
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
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.
Commissioner, Immigration and Naturalization Service.
[FR Doc. 99-13759 Filed 5-28-99; 8:45 am]
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.