Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The U.S. Citizenship and Immigration Services ("USCIS") today published a final rule immediately eliminating the requirement that certain H and L Visa Holders returning to the U.S. have an Adjustment of Status ("AOS") Receipt Notice to avoid abandonment of their AOS application. This is a welcome simplification of documentation requirements at the port of entry, especially since many AOS Receipt Notices are backlogged from the large volume of filings this summer.
Generally, an AOS applicant may not depart the U.S. without first obtaining an advance parole ("AP") document. Departing without the AP document results in the abandonment of the AOS application. The rules, however, make an exception for someone who has an AOS application pending but who is also maintaining an underlying H-1 or L-1 status. The exception also holds for dependants who are in H-4 or L-2 status.
Previously, when persons in H or L status returned to the U.S. without having an AP document, they had to prove to the immigration officer at the port of entry that they remain eligible for H or L status, that they will resume employment with the same employer for which they were previously authorized to work as an H-1 or L-1 nonimmigrant, that they are in possession of a valid H or L visa, and lastly, that they are in possession of the original Receipt Notice from their AOS application.
However, in recognition of the problems that USCIS has had in issuing receipt notices in a timely fashion, USCIS has decided to eliminate the requirement that H or L visa holders with a pending AOS application present an AOS receipt notice upon entry into the U.S. As a practical matter, USCIS is merely codifying an unofficial practice since it has been seldom that immigration officers at the port of entry actually request that a foreign national present the AOS receipt notice.
Littler Global will continue to monitor developments in immigration law and will update you when and if any changes occur.
Rodney A. Malpert was a Shareholder in Littler Global's Phoenix office. If you would like further information, please contact your Littler attorney at 1.888.Littler or firstname.lastname@example.org.