8 CFR 245.2 Application.
(a) General —
(4) Effect of departure —(i) General. The effect of a departure from the United States is dependent upon the law under which the applicant is applying for adjustment.
(ii) Under section 245 of the Act. (A) The departure from the United States of an applicant who is under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of the proceeding by reason of the departure. Except as provided in paragraph (a)(4)(ii)(B) and (C) of this section, the departure of an applicant who is not under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of any pending application for adjustment of status, unless the applicant was previously granted advance parole by the Service for such absences, and was inspected upon returning to the United States. If the adjustment application of an individual granted advance parole is subsequently denied the individual will be treated as an applicant for admission, and subject to the provisions of section 212 and 235 of the Act.
(B) The travel outside of the United States by an applicant for adjustment who is not under exclusion, deportation, or removal proceedings shall not be deemed an abandonment of the application if he or she was previously granted advance parole by the Service for such absences, and was inspected and paroled upon returning to the United States. If the adjustment of status application of such individual is subsequently denied, he or she will be treated as an applicant for admission, and subject to the provisions of section 212 and 235 of the Act.
(C) The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H–1 or L–1 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien remains eligible for H or L status, is coming to resume employment with the same employer for whom he or she had previously been authorized to work as an H–1 or L–1 nonimmigrant, and, is in possession of a valid H or L visa (if required). The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H–4 or L–2 status shall not be deemed an abandonment of the application if the spouse or parent of such alien through whom the H–4 or L–2 status was obtained is maintaining H–1 or L–1 status and the alien remains otherwise eligible for H–4 or L–2 status, and, the alien is in possession of a valid H–4 or L–2 visa (if required). The travel outside of the United States by an applicant for adjustment of status, who is not under exclusion, deportation, or removal proceeding and who is in lawful K–3 or K–4 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is in possession of a valid K–3 or K–4 visa and remains eligible for K–3 or K–4 status.
(D) The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful V status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is admissible as a V nonimmigrant.
64 FR 29209 Preliminary remarks from INS (now DHS including USCIS and CBP) upon issuance of regulatory changes published in volume 64 of the Federal Register on June 1, 1999. See at:
http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?position=all&page=29209&dbname=1999_register
What Categories of Aliens May
Maintain Nonimmigrant Status After
Having Filed for Adjustment of Status?
Under Section 214(b) of the
Immigration and Nationality Act, (Act),
most nonimmigrants who apply for
adjustment of status to that of
permanent residents of the United
States are presumed to be intending
immigrants and, therefore, are no longer
eligible to maintain nonimmigrant
status. Section 214(h) of the Act,
however, permits aliens described in
section 101(a)(15)(H)(i) and (L) of the
Act, i.e., temporary workers in specialty
occupations, intracompany managerial
or executive transferees, and their
dependent spouses and children, to
maintain their nonimmigrant status
during the pendency of their
applications for adjustment of status.
In addition, the Service is considering
expanding the dual intent concept to
cover other long term nonimmigrants
who are visiting this country as traders
(E–1), investors (E–2), students (F–1, J–
1 or M–1), or scholars (J–1), etc. These
nonimmigrants, who are typically
authorized to stay in this country for
considerable lengths of time, often need
to make short overseas travels during
their authorized stay. Under the ‘‘dual
intent’’ doctrine, these nonimmigrants
would be able to maintain valid
nonimmigrant status and travel overseas
without advance parole while applying
for adjustment of status.
The Service has, traditionally,
considered applying for adjustment of
status as relevant evidence in
determining whether an alien has
abandoned the requisite nonimmigrant
intent. Section 214(b) of the Act does
not, however, require the Service to
hold this position as an absolute rule.
So long as the alien clearly intends to
comply with the requirements of his or
her nonimmigrant status, the fact that
the alien would like to become a
permanent resident, if the law permits
this, does not bar the alien’s continued
holding of a nonimmigrant status.
Dual intent recognizes that a specialty occupation worker continues to work, a student continues to study, a manager continues to manage, an investor continues to invest or manage an investment etc... BUT a tourist can cease to be a tourist and a business trip ends, a diplomat can cease to be a diplomat, etc...
