Avoid Losing H-1B Status While your Adjustment of Status Application is Pending

It is common for an H-1B visa-holder on whose behalf a PERM and I-140 Petition for Alien Worker has been approved to wait years before they are eligible to actually adjust their status (ie., apply for and receive their “Green Card”).  This is a direct result of the huge backlogs in visa numbers for Employment-Based 3 category workers and even EB-2 category workers who were born in China, India, Philippines or Mexico.  As a consequence of this delay, these individuals (at the expense of their employers) may find themselves having to extend their H-1B status several times, even beyond the standard 6-year time limit that typically governs H-1B visas (once a PERM or I-140 has been pending more than 365 days, the employee is entitled to extend his/her H-1B visa beyond the 6-year limit).

After spending years dealing with immigration lawyers to file multiple extensions, these employees are only too relieved when they are finally eligible to file for their Adjustment of Status and receive Advance Parole, which allows them to travel in and out of the US while they wait for the application to be adjudicated. Moreover, the employees are often similarly relieved to receive their Employment Authorization Document, pursuant to which they can now take on a second job or just use it to continue working at their current employment.  And probably most of all, their employers are only too relieved to be done with the costs associated with keeping up the H-1B status.

Relieved to be done with worrying about their H-1B status and having to renew their visas at their home consul every few years, the employee happily travels home to visit their family and then re-enters the US on Advance Parole blissfully unaware that at the moment of re-entry to the US they have effectively relinquished their H-1B status.  The significance of this occurrence is that if their Adjustment of Status application is subsequently denied, they are immediately out of status. And the exact same applies to any employee who received their Employment Authorization Document and then used it to either take on a second job, or merely to avoid having to renew their H-1B status.  Once the employee has worked on the Employment Authorization Document they have effectively terminated their own H-1B status and are out of status if their Adjustment is denied.

I regularly receive calls from employers or their employees who have used the benefits of a pending Adjustment of Status application to either work or travel, received a denial and want to know what the consequences are.  To be clear, they are potentially grave.  If your EAD is simultaneously revoked, you are required to immediately stop working and may well be accruing unlawful presence as well.  And if you depart the US after accumulating 180 days of unlawful presence, you trigger a 3-year bar to returning! Furthermore, if you have already exceeded the 6-year limit in H-1B status you will not be eligible to get it back, leaving you almost out of options.

While I  appreciate all too well that maintaining H-1B status even while an Adjustment of Status application is pending can appear to be an unnecessary expense, I counsel all of my clients to maintain their non-immigrant status right up until the time that the Green Card application is actually approved. Typically by that point the employer may have already renewed the H-1B once before, which leaves the company liable for a nominal filing fee only.  And for the price of the legal fee involved in the renewal the employer may well be saving his/herself substantially more time and money down the road.  Particularly if you consider the cost of losing that employee’s services for as long as it may take to sort out the mess (assuming, of course that it is doable).

To employers of H-1B visa holders and the visa-holders themselves, I urge you to avoid the unnecessary, last-minute panic associated with falling out of status and to maintain your non-immigrant status for as long as it takes to actually receive the Green Card.  It may may well prove to be the cheapest option in the long run.

Call my office today at 914 358-1400 to receive your free consultation on how to avoid falling out of status in this or any other manner.  Or just Click here to email me now. 

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