Adjustment Of Status Issues For Some Visa Holders

Special Issues for Some Visa Holders Filing for Adjustment of Status (AOS):

  • Under the concept known as “dual intent”, individuals in H-1B or L-1 visa status can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting their status.

  • Additionally, H-1B and L-1 visa holders can travel outside of the U.S. while their AOS application is pending without advance parole travel authorization, and USCIS will not deny the AOS application.

  • Individuals in other visa classifications (e.g. B-1/B-2, TN visa) who are applying for AOS must be mindful about potential issues relating to intent, travel restrictions, work authorization, and being out of status.

Potential Preconceived Intent Issues:

  • U.S. immigration guidance distinguishes those who are planning to enter the U.S. under a temporary visa like a B-1/B-2 or TN and immediately apply for a green card, from those who have entered the U.S. and later decide to pursue a green card.

  • U.S. immigration officials may allege an applicant committed fraud and deny an AOS application if they believe the applicant had a "preconceived intent" to enter the U.S. under a temporary visa classification (like the B1/B2 visa, F-1 visa, or TN visa) and then remain permanently in the United States by filing an AOS application. See, e.g. In re X (AAO Sept. 7, 2007).

  • According to a rule developed by the U.S. Department of State, U.S. immigration officials may presume an individual misrepresented his/her intent if the individual engaged in conduct contrary to his/her temporary visa e.g. by marrying a U.S. citizen or by filing for AOS within 90 days of entering the U.S. 9 FAM 302.9-4(B)(3). If an individual engages in such conduct more than 90 days after entry into the U.S., immigration officials may not make this presumption unless they believe the individual misrepresented his/her intent. 9 FAM 302.9-4(B)(3).

  • USCIS has since stated that while the Dept. of State’s 90-day rule is “not binding on USCIS officers…USCIS officers may find that an applicant made a willful misrepresentation, especially if the violation or inconsistent conduct occurred shortly after the consular interview or admission to the United States.” See, e.g. In Re. 13019240 (AAO March 18, 2021) (citing USCIS Policy Manual, Vol. 8, Part J, Ch. 3 (A) (3)).

Travel Restrictions For Those Not In H-1B / L-1 Visa Status:

  • Anyone not possessing H-1B or L-1 status who files for AOS cannot depart the U.S. after filing their AOS application. Otherwise, the green card application will be considered abandoned. Such individuals may not be able to re-enter the U.S. under their visa.

  • TN visa, O-1 visa holders, etc. must first file an I-131 application for travel authorization (advance parole), which is applied for as part of AOS application, in order to travel outside of the U.S. without jeopardizing their AOS application.

  • Use of advance parole to travel and re-enter the U.S. will invalidate an individual's underlying visa status. In this case, individuals must then rely on their Employment Authorization Document for work authorization (see below).

  • More on Advance Parole travel authorization.

Potential Gaps In Employment Authorization:

  • Individuals may continue working under their temporary visa status - even non-dual intent visas like TN visas - after filing an AOS application. See 8 CFR 274a.12(c)(9).

  • However, they may not be able to renew their visa, or apply for a new visa with a different employer after applying for AOS.

    • For example, the filing of an AOS application is a significant sign of immigrant intent, which may be considered conflicting with the temporary entry requirements for TN status.

  • In order to continue to have employment authorization during the processing of the AOS application after their visa status expires, individuals should file an I-765 application for an Employment Authorization Document (EAD) when filing their AOS application.

  • Until recently, the EAD was issued on the same card as the Advance Parole travel authorization, but in some instances may be issued separately from the Advance Parole travel authorization.

  • An EAD allows open market work authorization, i.e. it is not tied to a specific employer or occupation.

  • However, use of the EAD will likely be considered to have invalidated an individual's underlying visa status.

Potential Out Of Status Issue:

  • Applying for AOS does not end an individual's underlying visa status (i.e. TN, O-1 visa, etc.). However, an AOS application also does not extend an individual's nonimmigrant status. See AFM 23.2 (n) (2) (C) ("the filing of an application for adjustment...is an action which neither preserves nonimmigrant status, nor violates such status"); AFM 23.5 (d) (C) (ii) (no violation of nonimmigrant status merely by filing AOS provided filing occurs before status expires).

  • As such, if an individual's visa status expires while the AOS application is pending, he/she will be out of status. If the status violation comes to the attention of immigration officials, the individual could be placed in removal proceedings, but he/she may still be allowed to remain in the U.S. while the AOS application is pending. AFM 23.2 (n) (2) (C).

  • If the applicant filed their AOS application before the expiration of their visa status, they will be considered in a period of authorized stay. This will prevent the individual from accumulating unlawful presence that could result in a potential bar to the U.S. in the future. USCIS Memo Unlawful Presence, pgs. 9-10.

  • If a visa worker's status expires and the AOS application is denied, the individual may be placed in removal proceedings.

More Information:

Revised June 9, 2023.