H-1 Visa and L-1 Visa Holders and Their Travel Abroad: No More Need to Present I-485 Receipt Notices at a Port of Entry
In a welcome change, on November 1, 2007, the USCIS published a Final Rule that makes it easier for certain H-1 and L-1 nonimmigrants who are returning from travel abroad to re-enter the United States without having to worry about having abandoned an I-485 Adjustment of Status application that they might have pending. The Final Rule is effective immediately.
Prior to this new rule being made effective, an individual on a an H-1 or an L-1 visa who traveled outside the United States while they had an adjustment of status application pending with the USCIS was required to show, when they re-entered the United States, the USCIS receipt notice for that I-485. Previously, if the H or L visa holder failed to show the Receipt Notice, they ran the risk of having their I-485 to be “deemed” to have been abandoned.
The USCIS has now quite correctly recognized that producing the Receipt Notice is “an unnecessary documentation requirement from the regulations that the Department of Homeland Security has determined causes an undue burden” on the H-1 and L-1 nonimmigrants.
Here’s the background.
Generally, when an alien has filed Form I- 485, ``Application to Register Permanent Residence or Adjust Status,'' (that is, an application for a green card) he or she must be very careful about traveling outside the United States while the application is pending. His or her green card application will be deemed “abandoned” if they leave the United States without having first obtained permission from the USCIS to re-enter—a process referred to as ``advance parole.''
However, H-1 and L-1 visa holders (and their dependent H-4 and L-2 dependents) have always been an exception to this rule—they don’t need advance parole. The H-1B specialty occupation visa holder, the H-1C registered nurse, the L-1A intracompany transferees manager or executives and the L-1B specialized knowledge' worker (and their dependents) all maintain their respective nonimmigrant status even while they are applying for green cards. Up until now, however, even these nonimmigrants were still required to show the original receipt notice for their I-485 application for adjustment of status at their port of entry when they re-entered the U.S.
Why the change? Quite simply, it appears that the USCIS recognizes that it doesn’t always issue Receipt Notices on a timely basis and that its own frequent delays creates real problems for H-1 and L-1 visa holders. Before now, an H-1 and L-1 visa holder who had not yet received his adjustment application Receipt Notice had to choose between canceling their trip abroad or risk having their green card applicaton deemed abandoned.
Importantly, H-1 and L-1 visa holders still have other obligations upon re-entry from travel abroad. They still must show the immigration officer at the port of entry that they:
1) Remain eligible for H-1/H-4 or L-1/L-2 nonimmigrant status;
2) Will resume employment with the same employer for which they had previously been authorized to work as an H-1 or L-1 nonimmigrant (a requirement that is not applicable to H-4 or L-2 nonimmigrants);
3) Are in possession of a valid H-1/H-4 or L-1/L-2 nonimmigrant visa (if a visa is required); and
The bottom line: the rule amends 8 CFR 245.2(a)(4)(ii)(C) to remove the requirement that an H-1/H-4 or L-1/L-2 nonimmigrant present an original of the Form I-797 receipt notice for a pending adjustment of status application upon readmission to the United States following a trip abroad in order to avoid abandonment of the adjustment of status application as a result of the departure.
As I said, a welcome change!
