1.
The Ability to Work in U.S. while I-485 Application is Pending
An alien
applicant who has filed an
I-485 application for adjustment of status may apply for an
Employment Authorization Document (EAD) during the period that the application is pending, including any period when an administrative appeal or judicial review is
pending. This is an unrestricted employment authorization that permits the alien to work for any employer. The alien may continue working pursuant to his or her existing nonimmigrant status, if such status permits employment.
USCIS normally takes the position that, after the application for adjustment of status is filed, the alien has immigrant intent and is no longer eligible for extensions or changes of nonimmigrant
status, such as F, O, J, and B visa or status. For this reason, it is advisable to obtain an unrestricted
EAD in most cases to work in U.S.
But aliens in H-1, L-1 status
and their dependents are not prohibited from extending or maintaining their nonimmigrant status while their adjustment of status applications remain pending. An alien who continues to maintain H-1 or L-1 status rather than to obtain an unrestricted employment authorization will still retain such status, if the
I-485 adjustment application is denied.
2.
The Employment Authorization
Document (EAD)
Application
When
you send the I-485 status adjustment application to USCIS, you
may also submit the I-765 form
for Employment Authorization Document
(EAD) application, if you want to work
in the United States while your I-485 adjustment of status application
is under processing.
The Immigration and Nationality
Act is the law that governs the admission of all persons to the United States. Part
of the law about Employment Authorization Documents defines the employment
authorization responsibilities of both employers and employees. USCIS issues Employment Authorization Documents
to prove you are allowed to work in the United States.
U.S.
employers must make sure all employees are allowed to work in the United
States. If you are not a citizen or a lawful permanent resident, you may need
to apply for an EAD to prove you are allowed to work
in the United States.
The specific categories that require an
Employment Authorization Document include applicants adjusting to permanent
residence status, asylees and asylum seekers, refugees, students seeking
particular types of employment, people in or applying for temporary protected
status, fiancés of American citizens, and dependents of foreign government
officials. The U.S. permanent
residents or conditional permanent residents do not need the Employment
Authorization Document.
The
benefits of the I-485 application and EAD include:
The
Form I-765 application offers the benefit of receiving an Employment Authorization
Document. The I-765 application
can be sent individually or with
the I-485 adjustment of
status. For the principal applicant, the EAD should be issued by the
USCIS as soon as the preliminary screener determines the eligibility, unless the applicant is clearly ineligible for
the adjustment of status, in which case the application should be routed for an expeditious
denial.
For dependent applicants, employment authorization may be issued as soon as the
principal applicant case is documented, provided the dependent applicant has submitted
satisfactory evidence of the relationship.
3.
The
Travel Document (Advance
Parole) Application
and
the I-485
Status Adjustment Application
The Advance Parole or Travel Document is used to apply for admission to the United States upon return from abroad without having to obtain a visa from a
U.S. Embassy or Consulate. If you need to travel outside the United
States while your I-485 status adjustment application is pending, you need to send an I-131 form to USCIS for Travel Document application. The
legal foundation for requiring these travel documents comes from the
Immigration and Nationality Act (INA), which defines documents required to
admit aliens and control their travel. Any immigrant who does not have the
correct travel documents and not in valid H-1 or L-1 status will not be admitted to the United States.
As an alien,
you need permission to return to the United States after traveling abroad, if
you do not have a valid H-1 or L-1 status.
This permission is granted through a travel document. Travel documents are
also given to people who want to travel, but cannot get a passport from their
country of nationality. You must
file USCIS Form I-131, Application for a Travel Document, complete with
supporting documentation, photos and applicable fees.
This Advance Parole or Travel Document
is usually issued for the time it takes for the I-485 application to be processed, and
it is valid for multiple entries. Once your Advance Parole (Travel Document) application is approved, you will receive 2 copies of form I-512. You must carry all 2 copies when you travel out of the
U.S. for the first time. One copy will be taken by the the USCIS officer at the port of entry. The second copy is for you and should be used during all subsequent trips.
If
the alien is required to seek Advance Parole, he or she should apply for an
unrestricted employment authorization (EAD). This is because an alien who is
"paroled" into the United States is no longer within the
nonimmigrant status he or she had before departure. Also, any derivative
status of an accompanying spouse or child arising from the principal alien's
previous nonimmigrant status is lost once the alien returns under parole.
4.
The Three
or Ten Year Bar to Admission for Some I-485 Adjustment Applicants
Travel outside of the United States may trigger the three
or ten year bar to admission for some adjustment applicants. This ground of inadmissibility is triggered if
you were unlawfully present in the United States (i.e., you remained in the United States beyond the period of
authorized stay) for more than 180 days before you applied for adjustment of status,
and you traveled outside of
the United States while your adjustment of status application was pending.
Under the
Immigration and Nationality Act, aliens who depart the United States after being unlawfully present in the United States for certain periods can be barred from admission to lawful permanent resident status, even if they have obtained Advance Parole. Those aliens who have been unlawfully present in the United States for more than 180 days, but less than one year, are inadmissible for three
years, and those who have been unlawfully present for a year or more are inadmissible for 10 years.
5.
Can I Travel Outside the U.S. during my I-485 Adjustment of Status Process?
According to 8 CFR §245.2(a)(4)(ii), an
I-485 application for adjustment is considered abandoned if the alien leaves the United States while the application is pending. However, the alien may apply for advance parole prior to departing the United States to ensure that his or her application is not deemed abandoned. Advance parole is available for any legitimate personal or business reason. USCIS
also allows H-1 and L-1 nonimmigrants and their dependents to travel outside the United States without abandoning their applications for adjustment of status, making
Advance Parole unnecessary for these H and L aliens.
Depending
on your current nonimmigrant visa status, if you have a valid H or L visa or
status, such as H-1B, H-4, L-1A, L-1B, L-2, you are free to travel at any time during the
I-485 permanent residence process. However, if you are on some other type of
visa or status, such as F, O, J, and B visa or status, there are often restrictions on
travel, and the Advance Parole is
required.
Therefore, if you are on a nonimmigrant visa other than H or L visas or status, you need an
Advance Parole document in order to travel once the I-485 application to
adjust status has been filed. An application for an Advance Parole Document is normally filed along with the I-485, but will often take from two to three months for approval. During this two-three month
waiting, you would not be able to travel. After return to the U.S. using the Advance Parole document, you would need an Employment Authorization Document (EAD)
to work.
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