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Maintaining H-1B Visa vs Using Adjustment of Status Work and Travel Permit

Introduction

Some H-1B Temporary (nonimmigrant) Workers who are applying for an adjustment of status to become Permanent Residents may choose to apply for a Work and Travel permit during the interim period while their application is being processed.

Some, however, do not. You will need to determine which option is best for you. This article is meant to help you better understand the difference between an H-1B visa and a Work and Travel Permit as well as lay-out some of the pros and cons associated with each of them! 

Most companies start the permanent residency (green card) process for their employees after 6 – 12 months of employment through an Adjustment of Status. This also applies to H-1B Visa holders applying for a Family-Based Adjustment of Status, not just Employment-Based. The permanent residency process is expensive. However, because most nonimmigrant visas have strict time limits, companies that hire foreign talent can only keep those employees long term if they sponsor them for a green card. For more detailed instructions on how to apply for Permanent Residency (green card) as a current H-1B Visa holder, check out Step 2 in our article The Ultimate H-1B Visa Guide: How to Hire International Employees. 

It is important to note that your H-1B visa is STILL valid even if you apply for a Work and Travel Permit as long as you continue to meet all the requirements of your H-1B Visa. Because of this, having both Visas grants you the benefits of both. However, if you travel or change employers using your Work and Travel Permit, you will no longer be able to use your H-1B Visa as you will be considered to be under Adjustment of Status rather than an H-1B visa holder. 

Pros and Cons Summary 

H-1B Visa RenewalWork and Travel Permit
Pros Longer duration (3 years vs. 1-year)
• Can serve as a good backup plan while waiting for your Work and Travel Permit. 
• Can hold both statuses concurrently until Work and Travel Permit is used, in which case the H-1B becomes invalid.
• Fees usually paid for by employer rather than out-of-pocket. 
• Shorter wait-times 
• Flexible with Jobs — not linked to one specific employer or job.
• Free if filed concurrently with Form I-485
• EAD for Adjustment of Status can be renewed until a decision is made on your application
• Not dependent on employment at a specific company in a specific position
• Acts as a good back-up plan should your H-1B visa expire or you lose your job while your application for an Adjustment of Status is pending
• Acts as a good back up plan if your H-1B visa becomes invalid and you need to travel outside the US. Advance Parole ensures your application is not abandoned.
• Free renewals with a pending Adjustment of Status application
Cons• Job specific.
• Cannot change positions without reapplying. If you lose your job, you will likely lose your legal status as this visa is employer-specific. 
• Expensive — but often paid for by the employer. 
• Temporary 
• 6-year limit except in special circumstances
• Shorter duration — only valid for 1-2 years. 
• Longer average wait time
• No cap on how many times it can be renewed
• Using the Work and Travel Permit for employment or travel invalidates the H-1B visa and it can no longer be used. 

Here is a table that summarizes the main differences between an H-1B renewal and a Work and Travel Permit. Information listed here is expanded upon in greater detail below. 

H-1B vs. Work and Travel Permit Overview 

H-1B RenewalWork and Travel Permit
Current Average Processing Time – National  (June 2020)Premium Filed: 0.5 monthsNon-Premium Filed: 4.5 Months6-8 Months but can vary depending on specific offices.
Base Filing Fee$460 for Form I-129$410 for Form I-765  and $575 for Form I-131 — but free if filed concurrently with Form I-485. 
Total Cost (approximately)Approx $3,000, often paid for by the employer.$410 + $575 each time filed, plus a potential biometrics fee of $85. Sometimes paid for by the employer.

Length of Visa
Usually 3 Years or until employment  ends1-2 years
Ability to RenewYes.  Can be renewed for 3 more years for a combined maximum of 6 years. Yes
Form(s)Form I-129, Petition for Nonimmigrant workerForms I-785 and I-131
Job SpecificYesNo
Who Files the form?Employer/petitionerApplicant or Petitioner/Employer
Application DeadlineApril 1stn/a
Earliest Start DateOctober 1stn/a
Yearly Visa Cap?Only on initial application, not renewal.n/a
TravelYes. However, if you ever work or travel with EAD/Advance parole, your H-1B becomes invalid and can no longer be used for work and travel.Yes, but with caution and only once granted Advance Parole. See more below

Understanding the H-1B Visa

In order to decide whether or not you should apply for a Work and Travel Permit while your application for Permanent Residency is being processed, you will need to understand how it differs from simply staying with your current H-1B Visa, or renewing your H-1B visa. 

First, let’s review the details of the H-1B visa, how your status is impacted when you apply for an Adjustment of Status (I-485), and how to apply for renewal. This information is meant to serve as a brief summary since you have likely already gone through the H-1B application process at least once before. For more detailed information about the H-1B Visa and how to apply, check out our articles Top 10 Most Common H-1B Visa Questions and The Ultimate H-1B Visa Guide: How to Hire International Employees

How long can I stay in the U.S. with an H-1B visa?

H-1B visas are usually valid for three years. USCIS can limit the duration of the visa according to the information your employer provides in the H-1B application. For example, if an employer cannot prove that the applicant is more likely than not needed for the full three year period, USCIS may issue the visa for less than three years. You may file to renew your H-1B visa for up to an additional three years. There are, however, some exceptions to this 6-year limit.  For example, there are ways to recapture days the employee was outside of the United States which allows them to ensure every day of the six years is utilized. 

Employment

THe H-1B visa is employer specific, which means that it is only valid while you are employed by your original petitioner (employer). Additionally, you do not want to get caught in a situation where your H-1B expires before your green card is granted. If that happens, you will not be able to legally work in the United States until you either receive your green card, renew your H-1b, or are granted a Work and Travel Permit. While there is the option to renew, some applicants choose to apply for a Work and Travel Permit as it is not employment-specific. 

How H-1B temporary (non-immigrant) worker status is affected when applying for an Adjustment of Status (I-485)

If you entered the U.S. on an H-1B visa, you may continue to work on that visa as long as it remains valid and you follow all stipulations pertaining to that visa. This means working for the same employer and abiding by the time limits placed on your visa. Make sure you plan ahead and extend your visa or apply for a Work and Travel Permit if you are worried your H-1B work authorization will expire before a decision has been made on your Adjustment of Status application (I-485).

To learn more about how a green card application affects your H-1B Visa status, check out our article here

Extending an H-1B Visa

Whether you are applying for the first time or renewing/extending your H-1B visa, the application process is quite similar. As with your initial application, your employer will need to submit form I-129 on your behalf along with all the necessary documents. 

The employer can file Form I-129 no more than 6 months before the start date of the employment. The same applies for H-1B extensions that are filed using Form I-129. You can apply for a renewal no more than 6 months before your current H-1B is due to expire. 

Fill-out and submit Form 1-129

To begin the petition process the employer must:

  • Complete and sign Form I-129, Petition for a Nonimmigrant Worker.
  • Refer to Form I-129 instructions for further details.
  • Include the appropriate filing fee with the petition (including the biometrics fee if applicable).

Collect the necessary documents to show your eligibility.

How much does it cost to submit an H-1B visa Extension

There is a $460 base filing fee for an H-1B petition extension. However, with the additional costs factored in, the renewal cost is almost the same as the initial application cost, averaging at about $3,000. However, these fees are almost always paid for by the employer. 

Do not worry about the cap when applying for a renewal of your H-1B as it does not apply to renewals.`

Understanding the Work and Travel Permit

H-1B visa-holders applying for an Adjustment of Status (I-485) may choose to also apply for a Work and Travel Permit. This is optional, but has unique benefits. First, however, it’s important to understand what the Work and Travel Permit is and how to apply.  

Recently USCIS started issuing employment and travel authorization on a single card for certain applicants attempting to adjust their status by filing an Application to Register Permanent Residence or Adjust Status (Form I-485). This card serves as both an Employment Authorization (EAD) (Form I-765) and Advance Parole (Form I-131) document. This card looks similar to an Employment Authorization Document (EAD) but includes a text that reads “Serves as I-512 Advance Parole”. This combo card is a Work and Travel Permit. 

Not only is this new card more durable and secure, it also eliminates the need for applicants to carry around two seperate cards. As someone applying for an Employment-Based Adjustment of Status you are eligible for this combo card. For more information, you can find USCIS’ answers to frequently-asked questions pertaining to this card here. 

Before we dive into the application process, let’s learn about the two primary components of this card: Employment Authorization and Advance Parole:

What is Advance Parole?

Advance parole is permission for an immigrant to enter the United States for a specific purpose. A “paroled” individual remains an “applicant for admission” and they can continue filing for a different immigration status.

Receiving this card does not guarantee your re-entry into the United States if you travel. Learn more about How to Travel After Submitting Form I-131 here

This card authorizes parole, not admission, to the US. Parole is not an admission or “entry”. Rather, it allows you to leave the United States without your Adjustment of Status application being deemed “abandoned”. Upon arriving at a port-of-entry into the United States, present your Work and Travel Permit to the Customs and Border Protection (CBP) Officer to request parole. If parole is granted, you will be permitted to return to the U.S. as a parolee. 

What is Employment Authorization? 

Employment authorization is when USCIS gives temporary authorization for employment to non-citizens. Immigrants can use Form I-765 to request an Employment Authorization Document (EAD). This document grants the non-citizen temporary employment authorization in the United States. Applying for Employment Authorization while waiting for your Adjustment of Status application to be processed is optional for H-1B Visa holders. 

Unlike your H-1B Visa, Employment Authorization granted via Form I-765 is not job specific. In other words, it is not tied to a certain employer or position. In this respect, Employment Authorization granted via Form I-765 is more flexible in terms of where you can work and when. Additionally, because it is not dependent on a specific employer, you can change jobs or lose employment without losing your legal status or having to reapply for a new Visa. 

How to Apply for a Work and Travel Permit

In order to get the combo Work and Travel permit, you must file an Application for Employment Authorization, Form I-765, and an Application for Travel Document, Form I-131, concurrently. These can be filed with or after filing and Application to Register Permanent Residence or Adjust Status (I-485). Remember that filing them concurrently with form I-485 currently results in the waiving of their fees. Please ensure that you enter your name and address identically on Forms I-765 and I-131. 

Note that you will receive an EAD without permission to travel if you do not request Advance Parole or if your Form I-765 is approved but your Form I-131 is denied. 

You must file the Forms I-765 and I-131 at the same time in order to receive an EAD and Advance Parole (Combo) card. Otherwise, you will receive two separate cards that you must carry with you.

For more information on how to file Form I-131, read our article Form I-131 Application for Travel: Everything You Need to Know.  For our Step-by-Step guide to Form I-765 (EAD), check out this article.

Understanding the specifics of the Work and Travel Permit

Cost of the Work and Travel Permit

As mentioned previously, when Form I-131 and I-765 are filed concurrently with an application for an Adjustment of Status (I-485), the filing fees for these forms are waived. In this case, the cost of these two forms would be $0 when initially filed. Additionally, renewal of these documents is also free when the applicant has a pending Adjustment of Status application.   

When filed separately from Form I-485, the application for Advance Parole costs $575 and the application for Employment Authorization costs $410, a combined total of $985. USCIS may also require a biometrics fee and appointment which costs an additional $85. 

USCIS fees do change sometimes. You can check the updated amounts here and here or call the USCIS National Customer Service Center at 1-800-375-5283. If you cannot pay the fee then check out the USCIS’ guide for Filing for a Fee Waiver.

Estimated Wait Time for Work and Travel Permit Applications

USCIS is currently taking 6-8 months to process and approve the combo card. Wait times can differ between offices, so be sure to look up the average wait times for your specific office. You can do that here. While it can be frustrating to wait that long to receive work authorization, these processing times are shorter than the current green card wait times and are meant to make the wait time for the green card a little easier.

Duration of Work and Travel permit

Work and Travel permits are issued by the USCIS for a period of one or two years, depending on the availability of an immigrant visa. USCIS may also in its discretion issue the card for a longer or shorter validity period, depending on the particulars of the case. 

Renewing your Work and Travel Permit

If your I-485 is still pending approval and your work permit is close to expiring you can apply for a renewal of your EAD.

This application can be submitted up to 120 days within your work authorization expiring. This is done by submitting a new Form I-765 nad a new form I-131 to USCIS. When applying for this renewal you will need to attach additional documents such as a copy of your current EAD and the Form I-797 notice from your Form I-485 application.

 You file your renewal application on Form I-765 and Form I-131 with USCIS before your current employment authorization expires. You are not required to be in a valid nonimmigrant status when you file your renewal application

Some Things to Consider When Deciding Whether or not to Apply for a Work and Travel Permit:

Employment 

One of the most important things to consider when deciding whether or not to apply for a Work and Travel Permit is employment. As mentioned previously, H-1B visas are linked to a specific employer meaning that you will be unable to change employers or stop working without losing your visa. The same applies to being fired or being laid-off.

The Work and Travel Permit, on the other hand, is not linked to a specific employer. This means that you are not tied to a specific job. Rather, your status and work authorization remains valid regardless of where you work or whether or not you are working. 

If you anticipate needing to change employers for any reason while your green card is being processed, it may be helpful to have a Work and Travel permit as a  back-up-plan as it will allow you to change employers and continue working in the United States without becoming “out-of-status”.

Timing

Balancing processing times with Expiration Dates 

Many applicants working on a H-1B that apply for an Adjustment of Status do so within the first 6-12 months. This ensures they have at least 24 months for their application to go through before their H-1B expires. Doing so decreases the chance that workers will have their Temporary (Non-Immigrant) Work visa expire before their green card application has been accepted. As mentioned previously, H-1B visas normally expire after 3 years but can be renewed. 

If one applies for an Adjustment of Status more than 12 months after their start-date, there is a greater likelihood that their H-1B visa could expire before a decision is made on their green card application. Applicants and employers should keep this in mind as they will likely need to plan ahead and either apply for an extension, apply for a Work and Travel Permit, or both in order to ensure continued employment authorization.  

As of June, 2020, the average national wait time for Employment-based Adjustment of Status applications was 13.7 months, however, wait times can be highly variable. Additionally, wait-time averages often differ between offices. For example, as of June 2020, the expected wait time for the Salt Lake City, UT office was 8.5-22.5 months for Employment-Based Adjustment of Status applications. Find more information about the waitimes for your specific office here

The current average processing times for H-1B renewals is 4.5 months for non-premium petitions. Premium petitions are currently taking an average of 0.5 months to process. 

While Work and Travel Permits used to take only 90 days to be processed, the average wait time is usually 4-8 months. 

6 year maximums 

Something else to consider is whether or not the applicant is nearing the end of their 6-year maximum on the H-1B visa. As mentioned previously, H-1B visas are typically granted in 3-year increments for a maximum of 6 years. However, in some cases, individuals can apply for 1-year renewals after they reach the 6-year maximum. Be sure to keep this timeline in mind as well. 

Given the processing times listed above, individuals will need to decide which option is best for them. Remember that having a Work and Travel Permit does not affect the status of an H-1B visa unless the terms of the H-1B have been violated in some way –such as by changing jobs. However, a Work and Travel Permit can be used to continue employment in the event that an H-1B expires. Note that if you choose to use the Work and Travel Permit Employment Authorization Document to work, you will no longer be able to use your H-1B visa. 

Travel 

As a general rule, any individual who has applied for an Adjustment of Status (I-485) must ensure that they have the right documentation to travel. Traveling without the correct documentation while the application is pending can result in the application being deemed abandoned or in the applicant being unable to return to the United States for a time . There are a few exceptions to this rule, including H-1B visa holders and L-1 visa holders. 

Traveling on an H-1B Visa

As previously mentioned, H-1B Visa-holders are the exception to the rule. Unlike other Visa types, applicants with H-1B status who have a pending application for Adjustment of Status do not need to apply for Advance Parole to travel as long as they have followed/are still following all the stipulations of their visa. They are free to travel as long as their H-1B visa remains valid. 

There is, however, an exception. In the case of a pending H-1B extension within the 240 day rule, workers who leave the U.S. will most likely have to wait outside of the United States for the extension itself to be approved. Because of this, applicants should stay in the U.S. while their renewal/extension is pending.

Traveling with Work and Travel Permit (Advance Parole (I-131) and Work Authorization Visa (I-785))

Most individuals apply for Advance Parole (I-131) at the same time they apply for an Adjustment of Status (I-485) and Work Authorization (I-765). Once granted, Advance Parole can be used by applicants to leave the United States without their pending application becoming abandoned. 

Again, please note that H-1B visa holders are exempt from this rule in most circumstances. 

In summary, it is usually a good idea to apply for a Work and Travel Permit when submitting an Application to Adjust Status ((I-485). When filed concurrently with an I-485, the Work and Travel Permit is currently free! It also serves as a helpful back-up plan in the case of travel. However, as noted previously, if you use your Work and Travel permit to travel, you will invalidate your H-1B visa. 

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Updated on July 9, 2020

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