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If you apply for an H1B or a Green Card, there would be certain points in the application stage where the US government recommends you avoid leaving the country lest you're seen as "abandoning your application". What's the rationale behind such laws?

At the very least in Europe I've never heard of people who are unable to leave the country because of pending applications, while in the US it is extremely common. In Canada you won't be able to fly into the country between the time when your PR is approved and the time when you're issued the physical PR card, however you can still return to Canada overland so it's not an issue.

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  • Many countries have a similar requirement, including many in Europe. – phoog Jun 3 '18 at 3:14
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    @phoog such as? I know that in some Schengen countries you might be in a situation where you don't have a valid visa while your permit is being processed, however you can still come and go as much as you please if you have a visa free passport. – JonathanReez Jun 3 '18 at 5:28
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    I don't know, but maybe it is related to the bureaucratic split between issuing visas for people outside the US (state department) and adjusting status for people inside the US (USCIS)??? – Patricia Shanahan Jun 3 '18 at 6:36
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    @PatriciaShanahan I believe that's more or less correct, but I think it may be more because of the legal or conceptual distinction than the bureaucratic distinction. JonathanReez I believe France and Germany are among the countries that have similar rules. I hope to have time to add an answer tomorrow. – phoog Jun 3 '18 at 15:40
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    In France, you can easily end up in a situation where all you have is a récépissé, which authorises stay but not re-entry and is thus akin to the situation you describe. Visa-free entry or use of a prior long-stay visa might still be possible but it might not, depending on the exact situation. – Relaxed Jun 17 at 8:07
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There's two parts to this answer.

In regards to "abandonment of status", the law states that the Adjustment of Status application (AOS/I-485) is automatically considered abandoned if you depart the US and don't have a valid work visa (L-1, H-1 or H-4, L-2 for their spouses), a valid spouse visa (K-3, K-4), has a "V nonimmigrant visa, or an Advanced Parole document (I-131).

Then, there's the concept of "dual intent":

A common requirement for nonimmigrant eligibility is that an alien seeking such classification have nonimmigrant intent rather than immigrant intent. In other words, an alien may not intend to remain permanently in the United States (i.e. immigrant intent) without jeopardizing his or her nonimmigrant status. This requirement usually manifests itself as:

  1. a need to maintain an unabandoned foreign residence abroad; and
  2. a presumption that the alien is an immigrant until the contrary is established.

However, not all nonimmigrant categories are subject to these requirements. Where they do not apply, it is often possible to apply the doctrine of "dual intent". Dual intent means an intention to immigrate at some time in the future while properly maintaining a nonimmigrant status in the present.

The full list of "dual intent" visa categories is:

H-1B temporary workers in a specialty occupation
H-4 dependents (spouses and unmarried children under 21 years old) of H-1B workers
L-1A itntracompany transferees executive or manager
L-1B intracompany transferees specialized knowledge
L-2 dependents (spouses and unmarried children under 21 years old) of L-1A or L-1B workers
O-1 aliens with extraordinary ability in sciences, arts, education, business or athletics
O-3 dependents (spouse or unmarried children under 21 years old) of O-1 visa holders
K-1 fiancé(e)s of U.S. citizens
K-2 dependents (unmarried children under 21 years old) of K-1 visa holders
K-3 foreign spouses of U.S. Citizen
K-4 dependents (unmarried children under 21 years old) of K-3 visa holders
V dependents (spouses and unmarried children under 21 years old) of U.S. lawful permanent residents.

As we can see, there's a big overlap between "dual intent" visas and visas where one can leave without automatically abandoning one's I-485: the four visa types not included are O-1, O-3, K-1 and K-2. From this we can infer some logic in the law:

  1. If you're on a "dual intent" visa, you're allowed to file for a Green Card within the country without breaking your presumed "nonimmigrant" status. Hence if you come back from abroad after filing an I-485, you'll still be allowed to enter.
  2. If you're not on a "dual intent" visa, leaving the US and coming after filing for a Green Card will result in trouble, as you've now indicated that you're no longer a "nonimmigrant" by filing for a change of status.
  3. Hence as as far as the US government is concerned, leaving the country without an Advanced Parole document means you won't be able to come back legally within the same status. And if you can't come back, the application to "change status" becomes moot.
  4. O-1, O-3, K-1 and K-2 are all supposed to be "dual intent" too, but presumably they were just forgotten about while drafting the law.

The logic is somewhat convoluted due to the whole charade of "dual intent" but that's just US immigration law for you.

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  • The first paragraph omits several details and a few nonimmigrant classes. Many of the relevant classes have nothing to do with employment. Accordingly, the summary in the numbered list is incorrect, and the characterization of the who the I-485 is for is incorrect. – phoog Jun 17 at 2:35
  • @phoog let me know if the new version is better – JonathanReez Jun 17 at 2:41
  • @phoog btw, still interested in your answer on France/Germany having the same rules. – JonathanReez Jun 17 at 2:45
  • In Germany it is doubful that a border guard would make such a determination themselves. They would only react to a decision made by the issuing authority of the residence permit. – Mark Johnson Jun 17 at 4:16
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    The exceptions are the statuses that allow dual intent. You can't be admitted into another non-immigrant status of you have immigrant intent (INA 214(b)), so if you haven't arranged to be paroled in instead you have no way to complete an adjustment of status if you leave while it's pending since you can't come back while it's pending. There is a logic to this, though I guess allowing dual intent in H and L status could be argued to be arbitrary. – Dennis Jun 17 at 15:45

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