Return On AP

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   H-1B Returning on AP: Amended INS Memo on H/Ls Traveling on Advance Parole" "Cite as 'Posted on AILA InfoNet at Doc. No. 00052603 

(May 26, 2000).'" The relevant memo is below the "previous postings" listed.

   INS Reverses Position on H/Ls Traveling on Advance Paroles 
   Cite as "Posted on AILA InfoNet at Doc. No. 00051801 (May 18, 2000) ." 
   U.S. Department of Justice
   Immigration and Naturalization Service
   HQADJ 70/ 2.8.6, 2.8.12, 10.18
   AD 00-03 
   May 16, 2000 
   MEMORANDUM FOR: 
   REGIONAL DIRECTORS
   SERVICE CENTER DIRECTORS
   DISTRICT DIRECTORS
   OFFICERS IN CHARGE
   ASYLUM DIRECTORS
   PORT DIRECTORS 
   FROM: 
   MICHAEL D. CRONIN
   ACTING ASSOCIATE COMMISSIONER
   OFFICE OF PROGRAMS 
   SUBJECT: AFM Update: Revision of March 14, 2000 Dual Intent Memorandum. 
   This memorandum supersedes and amends the March 14, 2000 memorandum on dual intent for H-1 and L-1 nonimmigrants with pending 
   applications for adjustment of status, which changes the Adjudicator's Field Manual, Chapter 23. 
   Please note that the Service intends to address these issues definitively when the Service finalizes the interim rule published on June 1,   
   1999, at 64 Fed. Reg. 29,208 (1999). When the final rule enters into force, the final rule, not this memorandum, will be controlling. 
   In Chapter 23 of the Adjudicator's Field Manual, the questions and answers added at APPENDIX 23-4, entitled FREQUENTLYASKED QUESTIONS 
   ABOUT TRAVEL OUTSIDE THE UNITED STATES BY AN H-1 OR L-1 NONIMMIGRANT WHO HAS APPLIED FOR ADJUSTMENT OF STATUS: by the March 14, 2000 
   memorandum, are removed and replaced with the questions and answers below: 
   1. If an H-1 or L-1 nonimmigrant has filed for adjustment of status under an employment-based preference category that requires an offer
      of employment in the United States, does the interim rule affect the applicant's responsibility to establish his/her intent to work for 
      the petitioning entity? 
   No. If an H-1 or L-1 has filed for adjustment of status under an employment-based preference category that requires an offer of 
      employment in the United States, the applicant still has the responsibility of establishing his/her intent to work for the petitioning 
      entity after becoming a permanent resident. Neither the rule nor the guidance has modified this requirement or the corresponding 
      requirement that the employer establish his/her intent to employ the applicant. 

     In the interim rule and initial guidance, the term "open-market employment" was used to mean unrestricted access to employment. 
     Applicants with pending applications for adjustment of status are eligible to apply for an employment authorization document (EAD). 
     With an EAD, an alien has access to unrestricted employment, the "open-­market". However, if the applicant is adjusting status 
     under an employment-based preference category that requires an offer of employment in the United States, the fact that an applicant
     is able to work in the open-market does not alter the applicant's responsibility to demonstrate an intent to work for the petitioning 
     employer. 
   2. If an H-1 or L-1 nonimmigrant or H-4 or L-2 dependent family member obtains an EAD based on their application for adjustment 
     of status but does not use it to obtain employment, is the alien still maintaining his/her nonimmigrant status? 
   Yes. The fact that an H or L nonimmigrant is grantedan EAD does not cause the alien to violate his/her nonimmigrant status. 
      There may be legitimate reasons for an H or L nonimmigrant to apply for an EAD on the basis of a pending application for adjustment 
      of status. However, an H-1 or L-1 nonimmigrant will violate his/her nonimmigrant status if s/he uses the EAD to leave the employer 
      listed on the approved I-129 petition and engage in employment for a separate employer. 
   3. If an H-1 or L-1 nonimmigrant has traveled abroad and was paroled into the United States via advance parole, the alien 
      is accordingly in parole status. Does this interim rule allow him or her to now apply for an extension of nonimmigrant status? 
    A: Until the final rule is published, an alien who was an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance
     parole,may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition. If the Service determines the alien's 
     application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the
     grant of parole and admitting the alien in the relevant nonimmigrant classification. 
   4. If an H-1 or L-1 nonimmigrant has traveled abroad and reentered the United States via advance parole, the alien is accordingly 
      in parole status. How does the interim rule affect that alien's employment authorization? 
    A: Service memorandum dated August 5, 1997, stated that an "adjustment applicant's otherwise valid and unexpired nonimmigrant 
      employment authorization ...is not terminated by his or her temporary departure from the United States, if prior to such departure 
      the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii)." The Service intends to clarify this issue in 
      the final rule. Until then, if the alien's H-1 or L-1 employment authorization would not have expired, had the alien not left and 
      returned under advance parole, the Service will not consider a paroled adjustment applicant's failure to obtain a separate employment 
      authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H-1 or L-1 
      employer between the date of his or her parole and the date to be specified in the final rule. 
   5. Should an alien returning to the United States from travel abroad who has a valid 1-512 and a valid H-1 or L-1 nonimmigrant visa 
      be paroled in or readmitted in H-1 or L-1 status? 
   A:If an alien has a valid H-1 or L-1 nonimmigrant visa and is eligible for H-1 or L-1 nonimmigrant status and also has a valid 
     Form I-512, he or she may be readmitted into H-1 or L-1 status or be paroled into the United States. It is the alien's prerogative
     to present either document at inspection. However, if an alien presents both a valid H-1 or L-1 nonimmigrant visa and a 
     valid Form I-512, and the alien is eligible for the H-1 or L-1 nonimmigrant classification, the Service should inform the alien that 
     H-1 and L-1 nonimmigrants no longer need to use advance parole to preserve pending applications for adjustment of status and should admit 
     the alien in H-1 or L-1 nonimmigrant status. The fact that an alien has applied for advance parole and received Form I-512 does not 
     compel him or her to use the advance parole. 
     If the alien is not admissible as an H-1 or L-1 nonimmigrant, then he or she cannot be readmitted as an H-1 or L-1 nonimmigrant. 
    Instead, such an alien may be paroled into the United States. 
   6. Is an alien who has a multiple entry 1-512 and who has previously been paroled into the United States now eligible for admission 
     as an H-1 or L-1 if he or she is still in possession of a valid H-1 or L-1 visa? 
  Yes, the alien may be admitted as an H-1 or L-1. However, aliens returning from abroad may only be admitted as an H-1 or L-1 when 
    they have a valid H-1 or L-1 visa (unless visa exempt), remain eligible for H-1 or L-1 classification, and, where there has been a recent 
    change of employer or extension of stay, have evidence of an approved I-129 petition in the form of a notation on the nonimmigrant visa 
    indicating the petition number and the employer's name, or a notice of action, Form I-797, indicating approval. If they do not meet these 
    criteria,  then they use their 1-512. 
   In Chapter 15.4 of the Inspector’s Field Manual, the Special Note A for nonimmigrant classification H-1B should be revised to read as follows: 
   (A) Foreign residence requirement. H-1B does not have to establish he or she has a foreign residence. For information pertaining to dual 
       intent, see AFM Appendix 23-4. 
   In Chapter 15.4 of the Inspector's Field Manual, add Special Note E for nonimmigrant classification L-1 to read as follows: 
     (B) Dual intent. For discussion of applicability of dual intent, see AFM Appendix 23-4. 
     Field Inquiries 
   All operational regional program units should familiarize themselves with this memorandum and related procedures in order to be
    responsive to any inquiry from the field. Questions regarding this memorandum may be directed, through appropriate supervisory channels 
    to HQADN. For issues concerning H or L status, contact John Brown or Irene Hoffman, respectively, at 202-353-8177. For issues 
     concerning advance parole, contact Michael Valverde at 202-514-4754.

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