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... as reported on immigration law website
10/03/2007: Hybrid Facts of I-485 Applicants Traveling in H or L Status and Issue of Abandonment of I-485 Application
- Currently the rule requires nonimmigrants other than H or L travel with an Advance Parole and the nonimmigrants in H or L nonimmigrant status may travel on H or L visa status without an advance parole. Careful analysis of the rule indicates that the nonimmigrants must possess an "approved" Advance Parole at the time of departure from the U.S. as well as at the time of returning to the U.S. In the same token, the special rule for H or L nonimmigrants also requires that the alien must possess a valid H-1 or L status at the time of departure from the U.S. as well as at the time of returning to the U.S. There are some aliens who filed I-485 applications while they were in a nonimmigrant status other than H or L and departed from the U.S. in such a nonimmigrant status but returned in a H or L visa status based on the approved L or H petition which was approved after their departure from the U.S. I-485 Receipt Notice will establish in such case that the alien abandoned the I-485 application by having departed from the U.S. when the alien was in other nonimmigrant status. The immigration inspectors will not be able to deny the alien's admission in such L or H nonimmigrant status because they enjoy the dual intent and whether or not the alien abandoned the I-485 application is immaterial to the issue of admissibility of the alien as a H or L nonimmigrant. However, to the inspectors as well as the Service Center adjudicators, such trip clearly terminated the alien's eligibility for I-485 application as the alien abandoned it.
- The other hybrid fact pattern involves an alien who had a H or L visa status at the time of departure from the U.S. after filing I-485 application but who attempts to return to the U.S. in a nonimmigrant status other than L or H or who is no longer in a valid H or L nonimmigrant. In this case, the rule may also consider that the alien is entering in an other nonimmigrant or invalid nonimmigrant status at the time of returning to the U.S. and such admission constitutes abandonment of I-485 application.
- Consequently, those who fit one of the two foregoing fact pattern may as well travel on the approved Advance Parole rather than on H or L nonimmigrant status. The issue of abandonment does not arise until the actual adjudication of the pending I-485 application, long after the return from a trip.
- There are another issue relating to the alien's departure from the U.S. without the I-485 receipt notice because I-485 regulation seems to require that the I-485 applicants traveling on a H or L nonimmigrant status must possess an original I-485 receipt notice. The legacy INS memorandums did not specify this requirement despite the specific provision in the regulation and there have been a number of incidents where the INS approved I-485 applications. Analysis of the I-485 Standard Operating Procedures (SOP) also does not appear to require this specific steps which are required for the I-485 adjudicators to check this part of evidence to approve the I-485 applications. This still remains an unresolved issue in this regard, as evidenced by the late USCIS FAQ on receipting delays. The answer attempted not to go into a specific answer to this question. In fact, the language in the regulation itself is vague, leaving a room for different interpretation. It does not provide that the alien should seek admission "with" the original receipt notice. It states that the alien returns in a valid H or L nonimmigrant status and the alien is in possession of the original I-485 receipt notice. It thus leaves a room of interpretation that the alien who entered on a H or L visa status at the time of reentry and currently possesses an original I-485 receipt notice may argue that they satisfied the rule. However, the conservative interpretation may require that the H or L aliens should carry with them the original I-485 receipt notices at the time of readmission to the U.S. Additionally, unlike the foregoing discussion, it appears that the regulation is not specific about whether the alien should not depart without the I-485 receipt notices "at the time of departure." The regulation focuses more on the requirement at the time of reentry. Therefore, this leaves a room for a liberal interpretation that those who departed without a receipt notice but returned with the receipt notice could arguably not violated this specific provision. However, this is not a law nor an authoritative interpretation and people should not rely on such a liberal interpretation unless they are charged for such violation in the process of their I-485 applications in the future.