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Yes. The strategy is the same as above in that the applicant gets two or more bites at the apple. If the applicant has a particularly strong background and impressive achievements, and is concerned that minimally qualified US workers will respond to the recruitment, then the filing of a special immigrant visa petition is a good concurrent option. Also, the applicant may prefer to self-petition under one of the special immigrant visa petitions, because it offers more job flexibility and mobility while the petition is pending, but want to have the labor certification as a safe alternative.

The foreign national should be maintaining her nonimmigrant status until she can apply to adjust her status (or leave the U.S. to consular process abroad for the immigrant visa). There are exceptions to the rule requiring maintenance of immigration status in order to adjust status in the US. The first is where the person did not violate her status for more than six months since her last lawful entry into the U.S. (Section 245(k)). The second is where the person is grandfathered under INA Section 245(i), whereby the person must have had an IV or LC filed before 4/30/01 (or in some cases their spouse or parent met this requirement), must have been physically present in the US by 12/21/00 (if filed after 1/1/98) and pay a penalty fee of $1,000.

If the applicant is maintaining her H-1B status while the adjustment is pending, then she is both an H-1B alien and an applicant for adjustment of status. This is the case even if the alien travels abroad and reenters the US using the H-1B and not advance parole. Once the alien loses her underlying nonimmigrant H-1B status, then she is considered an applicant for adjustment of status and needs the EAD to work and the advance parole to reenter the country after traveling abroad.

The applicant for adjustment is still in proper status so long as he works with authorization using the EAD or chooses not to work at all. Also, the applicant must have advance parole to travel abroad, and the parole must have been issued before departing the US.

It is not necessary, but it is advisable in certain situations. For example, if the adjustment is denied and the applicant maintained his underlying H-1B status, then he could maintain this H-1B status, extend it and change employers (provided there is time remaining in H-1B status).