Employment and Travel while I-485 is Pending
Temporary Employment Authorization while the I-485 is Pending
While the I-485 is pending and until the Adjustment of Status 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 the scholar 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 extend the H-1B visa beyond the six-year maximum, in one-year increments (or three-years if immigrant visas are backlogged), until the Adjustment of Status is adjudicated.
A scholar may apply for an employment authorization document (EAD) from USCIS and receive work authorization in 1-2 year increments. This can be filed concurrently when submitting the I-485 or separately while the I-485 is pending. An application for employment is made on Form I-765. The fee is included in the I-485 fee and covers any subsequent extensions. Processing time varies; consult the USCIS processing times.
Using an EAD technically terminates one’s H-1B status though a scholar can regain H-1B status by traveling and reentering the US 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 US 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 US 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 US 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.
Remaining in H Status
If a scholar (and/or dependents) chooses to remain in H status, the scholar and dependents may travel in their currently valid H status. They must abide by all the regulations that govern H status. For example, re-entry requires a valid H visa, employment for an H-1B only with USCIS-approved H-1B employer.
Traveling Under Advance Parole
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 US, they 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 US 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.
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 US, s/he should not travel outside the US until receiving such approval from USCIS. An application for Advance Parole is considered abandoned if the applicant travels during its pendency. Consult USCIS processing times. Upon reentry to the US 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 US after having filed an I-485.