10/23/2007: Weird Animal of Requirement for H-1B Traveling with 485 Original Receipt Notice in Order Not to Abandon 485 Application
This regulatory requirement has never received much attention with controversy until the July VB 2007 had created a huge and massive delay in 485 receipting notices. What purpose is it supposed to serve?
The U.S. immigration law requires that a nonimmigrant is not admissible to the U.S. if the alien applies for admission to the U.S. at the airport with an "immigrant intent." The law also provides that a nonimmigrant is also allowed to enter and stay in the U.S. for "temporary" purposes only with a clear intent to depart from the U.S. in the future after the permitted period of stay. Accordingly, when an alien applies for admission to the U.S. at the port of entry in a nonimmigrant status, the law assumes that the alien is applying for admission to the country with a nonimmigrant intent and not with an immigrant intent, as otherwise, the alien would not have been admitted to the country by the immigration inspectors. From the legislative intent of the statutes, it is obvious that when a 485 applicant leaves the country and applies for readmission to the U.S. as a "nonimmigrant," the law should assume that the 485 applicant wants to enter the country as a nonimmigrant, abandoning his/her immigrant intent. Advance Parole serves the purpose of showing the immigrant intent of the returning 485 applicant by not entering as a nonimmigrant but as a parolee to continue the immigrant application process within the country. In other words, Advance Parole serves the purpose of law as two evidence. One is to establish "immigrant intent" at the time of reentry. The other is a mechanism to allow such alien to enter the country without any nonimmigrant or immigrant visa status. That much, it is clear why the Advance Parole should be required for returning I-485 applicants.
What about H or L nonimmigrant? The law specifically permits dual intent - temporary resident intent as well as permanent resident intent. Accordingly, H or L alien cannot be refused an admission to the U.S. by the immigration inspections at the airport simply for the reasons that the alien attempts to enter the country with an immigrant intent. However, this is only an issue of admissibilty of H or L nonimmigrant to the country and not an issue of retention of immigrant intent. Since the law should still determine whether the returning H or L alien is applying for readmission to the U.S. with a "specific immigrant intent," and not with a nonimmigrant intent for the purpose of 485 proceedings for adjustment of status to a lawful permanent resident, the system apparently needed an evidence to determine the specific immigrant intent of the returning H or L aliens. In other nonimmigrant visa aliens, such "immigrant" or "nonimmigrant" intent can be presumed or assumed without any problem because the law prohibits such aliens from entering the country with the immigrant intent. However, in the case of H or L aliens, there is no mechanism to derive an assumption that in a specific entry, the alien was entering with the specific immigrant inent for the purpose of the issue of retention of 485 proceeding and continuing immigrant intent. It thus appears that the regulation that requires a possession of original I-485 receipt notice is intended to provide a device to determine the specific immigrant intent of the returning H or L aliens for the purpose of the retention of the continuing immigrant intent and application for adjustment of status to a lawful permanent residence. Without such evidence, no such immigrant intent, which the 485 proceeding requires, can be established in one way or another unlike the situations in other nonimmigrants. In other words, in the H or L nonimmigrant cases, simple reentering of the alien cannot derive an assumption or presumption of intention of the alien as to nonimmigrant intent vs immigrant intent without some evidence to derive such assumption or presumption at least in the eyes of the law. Allowing dual intent does not automatically translate it into an assumption or presumption of a specific immigrant intent of the alien when the alien travels and returns to the country. This is particularly true considering the fact that even if the alien enjoys a dual intent, the alien is still entering as a "nonimmigrant" and unless a certain evidence indicates otherwise, the law can only assume that the alien is entering as a nonimmigrant and with a nonimmigrant intent rather than an immigrant intent. Presumedly, the drafter of the regulation intended to use 485 receipt notice to determine the continuing immigrant intent of the 485 travelers upon returning to the country. Again, here the issue is not admissibility but abandonment of immigrant intent.
Well, a law is a law. Even though the record reflects that the immigration examiners have rarely implemented and enforced this law in adjudicating 485 applications, such record cannot guarantee continuing ignorance of this law by the adjudicators. As it stands now, should an I-485 application be denied on this evidence of abandonment of immigrant intent by an adjudicator, the burden of proof of continuing immigrant intent at the time of reentry should rest with the applicant requiring specific evidence of immigrant intent at the time of reentry. People may as well travel with the original I-485 receipt notices until the USCIS amends the regulation.
