USCIS TO DO AWAY WITH I-485 RECEIPT REQUIREMENT FOR RETURNING H-1B AND L-1 VISA STATUS HOLDERS

This past summer, a common question I received during the Visa Bulletin mess was whether a person could travel and re-enter the US with the H-1B or L-1 visa rather than waiting months on an advance parole document. The answer is yes, but the rules require one to actually have the I-485 receipt to actually benefit from this exception to the normal requirement. Unfortunately, the huge number of filings meant USCIS took an abnormally longer period of time to issue I-485 receipts.

USCIS has just released a welcome rule that will be published in the Federal Register on Monday and is immediately effective that does away with this needless, time wasting requirement. H-1Bs and L-1s have previously had to demonstrate the following:

1. continuing eligibility for H-1/H-4 or L-1/L-2 status;
2. resumption of employment with the same employer as before departure;
3. possession of a valid visa if a visa is required;
4. possession of the receipt for the I-485 petition.

The fourth requirement is being dropped.

Now how about just scrapping the whole antiquated advance parole requirement all together?  I have yet to hear anybody offer a convincing policy reason in support of the advance parole document.

Comments

[A H(uman)1B(eing)]

This rule was never enforced. It was just on the books. Since CBP who let people into the country and USCIS are two separate organizations, there was no way this rule could've been enforced. They had no option but to remove this unenforceable rule.

Good riddance!

[john]

thanks greg. Since the intent is clear in the rule, atleast there is some ground to pursue, if they ever reject anyone's (july ppl) application based on this issue.
thx greg

[Greg Siskind]

Hi Bharat - Please note that I don't advise on individual cases on my blog. You're always welcome to set up a telephone consultation to discuss your case. Thanks.

[Greg Siskind]

John - Here's what the rule says about the effective date:

" Moreover, DHS finds that good cause exists under 5 U.S.C. 553(b)(B) to make the rule effective upon publication in the Federal Register without prior notice and public comment on the grounds that delaying implementation of this rule to allow for public comment would be impracticable and contrary to the public interest. As a result of USCIS's July 17, 2007, announcement that it would accept employment- based Forms I-485 filed by aliens whose priority dates are current under Department of State Visa Bulletin No. 107, USCIS received an unprecedented volume of employment-based applications for adjustment of status, including those filed by H and L nonimmigrants. Because of the recent surge in such filings, it will take several weeks for USCIS to enter the necessary data and issue Form I-797 receipt notices for employment-based adjustment of status applications. Therefore, it is important for this rule to take effect as soon as possible to avoid undue hardship on applicants who may need travel outside the United States prior to receiving the receipt notice.

In addition, no substantive rights or obligations of the affected public are changed by this rule. DHS believes the public will welcome this change. The public needs no time to conform its conduct so as to avoid violation of these regulations because the rule relieves a requirement of the existing regulations. Further, this rule will have no adverse impact on DHS' adjudicatory responsibilities or ability to track the foreign travel of affected persons since DHS already records the admission of all nonimigrants. For these reasons, this rule is effective immediately under 5 U.S.C. 553(d)(1) and (3)."

The language is not clear regarding it being retroactively applied, but because they mention the July filing mess, one would think that they intend to treat everyone the same. We'll have to wait on further guidance on this.

[BharatPremi]

Greg,

I would highly appreciate your comment/advise in my case. I planned my trip to Canada this November 15th. I have H1B Visa expired in passport (Although have valid 797 till 2010. I already have received all 485/AP/EAD receipts.) I have taken a appointment in Toronto for H1B Visa renewal. Trip is really meant for less than 30 days. AND I AM WAITING FOR ADVANCED PAROLE. Suppose by November 14th if I do not get Advanced parole approval what would be my best bet out of following.
The goal ofcourse is to visit Canada in such away that 485 does not get jeoparadized.

1) Cancel the Consulate appointment.Visit Canada (Do not
surrender I-94) and use Automatic Visa revaldation since
trip is for less than 30 days (Note: my H1B Visa stamp is
expired in the passport).

2) Do not cancel the trip. Go and Attend Toronto Consulate
appointment. In this scenarion my fear is that in case visa
is denied or delayed for any reason how can I come back to
USA? Can I use Automatic Visa revalidation in this case?

3) Cancel the damn trip and appointment and just wait for
Advanced Parole.

Thanks in advance for your time and help.

- BharatPremi

[ImmOrNot]

Greg:

I have the same question that John asked. I know some people including me have already traveled abroad without a I485 receipt notice, and returned on valid H1B. How the new rule would affect those people who have already traveld without receipt? Thanks.

[john]

greg:
this published rule is confusing.can you please help.
does it mean that the POE rule is applicable from 1st Nov. or does it mean they will not abandone the application starting 1st Nov.that effective date is not quoted clearly in the text.

[Calouste]

Off topic:

ICE condemns another immigrant to death. Read the harrowing testimony of Francisco Castaneda before Congress: http://www.aclu.org/images/asset_upload_file841_32062.pdf

He has been denied medical care while in ICE detention for more than a year, and as a result had to have his penis removed, but the cancer has spread anyway, so he doesn't have long to live.

[ImmOrNot]

Greg:

Is this going to be effective Monday? I thought this had been effective after sometime in July or August. I had already traveled to Canada and returned in October without a I485 ceceipt. It was a 7 day trip and I did have valid H1B. I got my receipt with July16,2007 as received date. Is this going to be problem for me? I would appreciate if you or somebody could clarify.

[YourFan]

This is really some relief! And I completely agree with your suggestion for scrapping AP requirement as well.

the covincing reason for ap is money. uscis makes lot of money from ap

[john]

one more thing. 99% of those who got H1b ead's are still renewing their H1b's just for safety. then why all these ead's!!! this is waste of time and money. to keep you status alive you have to run two permits same time. I am not sure when these stupid processes will be dumped..

[john]

greg,
I presume this will take effect from july 1.many people like me have travelled overseas and returned without receipt notice. It is scary when rules are not clear to public.
they should remove the crap ead/ap and just issue one document once 485 filed. paper reduction....(with regards to revenue) they can still charge this to 485. Its a pain renewing this bunch of documents for me /dependents. think about cis work load. I guess they want more work and hide their face under the files....

[nortam1]

Greg,

Is this retroactive to July applicants?

Thanks

[Sid]

Finally common sense prevails. I had to cancel my trip to India in Aug because of this stupid requirement.