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Travel and Employment While I-485 is Pending

Travel and Employment

Temporary Employment Authorization While the I-485 is Pending

While the I-485 is pending, and until adjustment is approved, a scholar already working for NYU in H-1B status can retain that status as long as the I-797 is still valid and s/he is working at NYU under the terms of the petition filed. If it appears that the six years in H-1B status will expire before the I-485 is adjudicated, a scholar whose Labor Certification or I-140 was filed at least 365 days before the expiration of the sixth year in H-1B status, may, if the I-140 is still pending, extend the H-1B visa beyond the six-year maximum, in one-year increments, until the Adjustment of Status is adjudicated. A scholar who wishes to work for or receive honoraria from an employer(s) other than NYU before the I-485 is adjudicated, can apply, concurrent with submitting the I-485 or while it is pending, for an employment authorization document (EAD) from USCIS and receive work authorization in 1-2 year increments. An application for employment is made on Form I-765. The fee is included in the I-485 fee and covers any subsequent extensions. USCIS is required to process EADs within 90 days. Using an EAD technically terminates one’s H-1B status though a scholar can regain H-1B status by traveling and reentering the U.S. with valid H-1B documents.

  • Scholars in O-1 or E-3 status may not retain O-1/E-3 status once they re-enter the U.S. after having filed an I-485, but rather must apply for employment authorization while the I-485 is pending.
  • Dependents in H-4 status may also, at the time of filing an I-485, surrender their H status and request employment authorization.
  • Dependents in O-3 or E-3 status will also lose O-3/E-3 status once they re-enter the U.S. after having filed an I-485 and may, if they choose, file for employment authorization.

Note: When both EAD and Advance Parole (per below) are requested, they are now issued in one document.

Travel Outside the U.S. While the I-485 is Pending

Individuals in H-1B or H-4 status often need to travel internationally while an I-485 is pending. There are two possibilities for the scholar and his or her dependents.

  • If a scholar (and/or dependents) chooses to remain in H status, s/he and dependents may travel in their currently valid H status. They must abide by all the regulations that govern H status, i.e., re-entry requires a valid H visa, employment for an H-1B only with CIS-approved H-1B employer.
  • If a scholar (and/or dependents) who has chosen to abandon H status by applying for and using an EAD wishes to travel outside the U.S., s/he may wish to apply for and be granted permission for such travel. This permission is called "advance parole.” Advance Parole is also helpful to those who do not want to have to apply for an H visa at a U.S. consulate abroad. An application for Advance Parole can be filed on Form I-131 concurrently with Form I-485 or while it is pending. The fee is included in the I-485 fee. Processing time is usually 2-4 months. Once an application for Advance Parole is submitted, unless an alien is maintaining H status and has a valid H visa on which to reenter the U.S., s/he should not travel outside the U.S. until receiving such approval from CIS. An application for Advance Parole is generally considered abandoned if the applicant travels during its pendancy. Upon reentry to the U.S. on Advance Parole, an employee receives “parolee” status on the I-94 which is valid for the length of time indicated, usually one year.

Employees in O or E status must apply for Advance Parole as they cannot retain O/E status once they re-enter the U.S. after having filed an I-485.

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