99-13759. Adjustment of Status; Continued Validity of Nonimmigrant Status, Unexpired Employment Authorization, and Travel Authorization for Certain Applicants Maintaining Nonimmigrant H or L Status  

  • [Federal Register Volume 64, Number 104 (Tuesday, June 1, 1999)]
    [Rules and Regulations]
    [Pages 29208-29212]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-13759]
    
    
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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 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]
    BILLING CODE 4410-10-M
    
    
    

Document Information

Published:
06/01/1999
Department:
Immigration and Naturalization Service
Entry Type:
Rule
Action:
Interim rule with request for comments.
Document Number:
99-13759
Pages:
29208-29212 (5 pages)
Docket Numbers:
INS No. 1881-97
RINs:
1115-AE96: Adjustment of Status, Continued Validity of Nonimmigrant Status, and Unexpired Employment Authorization for Applicants Maintaining Nonimmigrant H or L Status
RIN Links:
https://www.federalregister.gov/regulations/1115-AE96/adjustment-of-status-continued-validity-of-nonimmigrant-status-and-unexpired-employment-authorizatio
PDF File:
99-13759.pdf
CFR: (2)
8 CFR 214.2
8 CFR 245.2