FAQ Series II: Issues Related to I-140/I-485 Filing for H-1B Holders

We have received many inquiries regarding the impact of I-140 and/or I-485 filing on H-1B status. In order to help you develop a comprehensive understanding of the issues related to I-140/I-485 filing for H-1B holders, we are providing this FAQ section. In addition to addressing the impact of filing I-140/I-485 on H-1B holders, this FAQ will discuss issues related to EAD, Advance Parole, travel with a pending I-485 and some other issues.

1. Can an H-1B holder apply for an NIW/EB-1 and PERM at the same time?

Yes; under U.S. immigration law, an applicant is allowed to file multiple immigration petitions simultaneously. It should be noted, however, that the different categories have different requirements that must be met by the applicant.

2. Dothe concurrent filings of an NIW/EB-1 and a PERM affect each other?

No, they do not affect each other because the adjudication of the different petitions is independent.

3. If an H-1 holder applies for an I-140 and I-485, will it affect his/her H-1 status?

No; there will be no effect on the applicant’s H-1 status..

4. My spouse is in H-4 status and will apply for an I-485 with me.  Will this affect her H-4 status?

No; there will be no effect on the spouse’s H-4 status.

5. My spouse is in H-4 status and will apply for an I-485 adjustment of status.  Will this affect her future application for an F-1?

Yes. Filing an I-485 demonstrates the applicant’s intent to immigrate to the United States. As F-1 visas are designated for students with non-immigrant intent only, there is a high chance that her new F-1 visa application or application for change to F-1 status will be denied.

6. I am on an H-1B sponsored by a university. Will my application for an I-140 and I-485 affect a potential future application to work for a company under an H-1B?

No. However, when you apply for another H-1B to work for a company in the future, you will be subject to the H-1B annual quota if you have not worked for a quota-subject employer under H-1B before.

7. I am in H-1B. Will my application of an I-140 and I-485 affect a future H-1B transfer application?

No.

8. I am in H-1B status and will apply for an NIW, I-485, EAD and Advanced Parole. May I use an EAD to work after its approval?

Yes, you may use the EAD to work for your current employer or any other employer. However, if you use the EAD, you may be considered to have abandoned your H-1B status, and will be considered in I-485 pending status. This may impact your future extension or transfer of H-1B status.

9. I am in H-1B status and will apply for an I-485, EAD and Advanced Parole. Should I use my EAD to work, or stay with an H-1B?

You may use it, but you need to evaluate the risks. If you use EAD to work, you may lose your H-1B status. If that is the case, and your I-485 will be rejected, you will be out of status immediately, and will need to leave the U.S. To reduce this risk, we suggest you not use your EAD before your I-140 is approved.

10. I am in H-1B status and will apply for an I-485 adjustment of status. If my I-485 is denied, will it affect my H-1B?

No. It will not affect your H-1B status as long as you don’t use your EAD or Advance Parole.

11. I am in H-1 status and will file an I-140. Moreover, I plan to go to school and change to F-1 status in one year. Does my application for an I-140 affect my future application for F-1 status?

Yes; since your immigrant intent is shown by your I-140 application, there is a significant chance that your new F-1 visa or change of status application will be rejected because of the immigrant intent that you showed with your I-140.  F-1 visas are reserved only for those with non-immigrant intent.

12. I am in H-1B status. If I use an EAD or Advance Parole under my I-485, do I still have H-1B status?

No. You are in I-485 pending status or parolee status.

13. My H-1B application is pending. If I submit an I-485 and/or EAD petition, will that influence my H-1B application?

No; the submission of an I-485 and/or EAD petition will not affect your H-1B application.

14. I am in H-1B status and have applied for an I-140. Can I travel outside the US?

Yes. You can leave the US.

15. If I travel outside of the United States while on H-1B status, how do I come back?

In order to be allowed to re-enter the United States, you will need to apply for an H-1B visa at the US Consulate abroad.

16. Does my application for an I-140 affect my chances of getting an H-1 visa?

No. H-1 visa/status allows "dual intent", which means that a person may choose to return to his/her home country or may choose to move on to permanent residency status in the U.S. Filing an I-140 shows an alien’s intent to immigrate, but it doesn’t influence your future application for an H-1B visa.

17. I am in H-1B status and have applied for an I-140 and I-485. I have a valid H-1B visa. May I leave the US and come back to the US by using my valid H-1B visa?

Yes.

18. I am in H-1B status and plan to apply for an I-140/I-485. What applications or status does my I-140 affect?

Your application for an I-140/I-485 will affect 1) your chance to apply for F-1, F-2, B-1, B-2, J-1, and J-2 visas; 2) your entry into the US on an F-1, F-2, B-1, B-2, J-1 and J-2 visa; and 3) your chance to change your status in the US to F-1, F-2 B-1, B-2, J-1 or J-2. Establishment of immigrant intent will impact most non-immigrant visa applications (other than H-1B, L-1, and K) because all these visas and status categories do not allow the alien to have immigrant intent and an I-140 application demonstrates immigrant intent. While not specifically dual intent visas, O, E, P, and R visas are also not, as a general rule, affected by I-140/I-485 applications.

19. What does an I-140/I-485 application not affect?

An I-140/I-485 application does not affect dual intent visas (H-1B, L, and K) nor does it affect visas that are treated similarly to dual intent visas (O, E, P, and R).

20. I am in H-1B status and plan to apply for an I-485, EAD and Advance Parole. If I use an EAD or Advance Parole, what is my status?

You are in I-485 pending status if you use your EAD and/or parolee status if you use Advance Parole for reentry.

21. Is parolee a valid non-immigrant status?

No. It is a legal stay while your I-485 is pending .

22. If I use an EAD or Advance Parole and my I-485 is denied, can I legally remain in the United States?

No. You will be out of status. When you use an EAD or Advance Parole, you lose your H-1B status. If your I-485 is denied, you will be out of status and have to leave the U.S. However, you may have a chance to change back to H-1B status in the US after using your Advance Parole.

23. I am in H-1B status and would like to file an I-140 and I-485. What do you suggest that I do as far as my status is concerned?

We suggest that you keep your H-1B status at least until your I-140 is approved. If your I-140 immigration petition is sponsored by your employer, it is better not to change jobs (if you wish to do so) until your I-485 application has been pending for 180 days.

Despite this, when you travel abroad, you should apply for an Advance Parole document before you leave the U.S. You can bring the Advance Parole document with you, but you should try to apply for the H-1B visa first. If you get the H-1B visa, use it to re-enter the U.S. If your H-1B visa application is denied, you may use the Advance Parole to re-enter the U.S. Thus, your Advance Parole is a back-up that will let you return to the U.S. in case you cannot get an H-1B visa.

24. I am in H-1B status and will file an I-485. If I travel outside the US without an Advance Parole, is my I-485 application abandoned?

No. As a general rule, an alien who has filed for Adjustment of Status in the US needs to apply for Advance Parole and use the Advance Parole to come back to the US in order to keep his/her Adjustment of Status pending. Conversely, if one travels abroad while his Adjustment of Status is pending without an Advance Parole, his Adjustment of Status is considered as abandoned even if he comes back to the US with a valid visa.

However, unlike other visa types, aliens in H-1B status who have pending Adjustment of Status cases do not need to apply for Advance Parole to go abroad if they fulfill certain conditions. As long as the H-1B visa holder maintains his/her H-1B status while away from the U.S., he/she may try to apply for an H-1B visa to re-enter the U.S. and continue working for his / her H-1B sponsoring employer after his/her travels abroad. When he/she comes back with a valid H-1B visa to work for his/her H-1B sponsoring employer, he/she is not considered to be in parolee status; he/she is still under H-1B status, and his/her I-485 is preserved. He/she does not need an EAD to work. Furthermore, he/she can still apply for an extension of H-1B status or transfer to a different employer.

25. I am in H-1B status and will file an I-485. If I travel outside the US and come back using Advanced Parole, may I work for my H-1B sponsoring employer?

Yes. As an exception, your H-1B employment authorization will still be valid although you are in parolee status.

26. In reference to question 25, do I need an EAD to work for my H-1B sponsoring employer?

No, USCIS issued a special memo indicating that an alien does not need an EAD to work for his/her H-1B sponsoring employer after he/she travels outside the US and comes back on Advance Parole

27. In reference to question 25, what would my status be?

You  are considered to be in parolee status.

28. In reference to question 25, how can I get back to H-1B status?

You can get back to H-1B status by applying for an H-1B extension or H-1B transfer.

(Updated 10/9/2012 by AD)

For more information aboutConcurrent Filing of I-140 and I-485, please click one of the following topics: