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.
I. 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?
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?
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.
II. 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.
III. 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.