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The following questions and answers are based on those frequently posed to
the Attorneys at The Law Office of Sheela Murthy, P.C. As a
courtesy to our clients and the immigrant community, we share
this useful information.
The term CP refers to Consular Processing; AOS,
to Adjustment of Status and I-485 is the USCIS application form used in the
last stage of the Green Card process.
Question 1. When can I file my I-485 Adjustment of
Status?
TOP
Until July 31,
2002, an application for employment-based adjustment of status could not be
filed until the I-140 immigrant petition was approved and an immigrant visa
was immediately available. Now, the I-485 may be filed simultaneously with
the I-140 petition or once the I-140 receipt notice has arrived from the USCIS,
as long as a visa number is immediately available. The priority date
determines the order of visa availability. For relative petitions, the
priority date is the date the I-130 immigrant petition was properly filed.
For employment-based petitions, the priority date is the date the labor
certification (LC) was filed with the Department of Labor (DOL) or the date
the I-140 immigrant petition was filed with the USCIS if an LC was not
needed. If one's priority date is before the date indicated on the
U.S. Department of State (DOS)
visa bulletin
chart for the person's category and their country, that individual may
file for Adjustment during the month when the priority date is current.
Generally, the chart is issued in the middle of the prior month. For
example, the chart for May would be issued in mid-April. If one's
priority date is current, according to that chart, s/he could file the
I-485 during May. There are also special situations, such as lottery,
registry, and asylum that permit filing for adjustment of status within
specified timeframes.
Question 2. When
can I take the medical exam?
TOP
For adjustment
cases, the medical exam report should be submitted with the I-485
application. The medical exam must be dated no more than one year prior to
filing the Adjustment of Status. In cases handled by The Law Office of
Sheela Murthy, P.C., we provide clients with the phone number to call
for a listing of DHS approved doctors in their geographic areas. The medical
examination for adjustment of status must be completed by a USCIS certified
physician within the United States. We also provide our client with the
medical form to be completed by the doctor. The doctor will return the
medical form to the individual in a sealed envelope. This should NOT be
opened by the applicant and will not be opened by our Office. This document is
only to be opened by the USCIS.
A medical examination for a consular processing application must be
completed by a DOS-certified physician in the country where the consulate is
located. One must take these results to the consular interview. It is recommended that
the medical exam take place at least 10 days
in advance of the consular interview to ensure all
results of the exam are returned in time for the interview.
Question 3. What
is an EAD and do I need it?
TOP
An Employment
Authorization Document (EAD) permits one to work while the adjustment
of status application is pending. It is necessary in cases where a person's
current employment eligibility will expire before the adjustment process is
completed. It also is necessary when one has never had employment
authorization, such as in the case of a person who has been on H-4 status. Even if
one
has a valid working status, including H1B with a specific employer, if that
individual
wants to take a second job on the side, then an employment authorization
document would be needed. One using an EAD should extend his/her EAD
about 6 months before the expiration date to avoid a time lapse and to enable
the continuation of work without interruption. Generally, one may apply for
an interim EAD card, if the EAD application has been pending
more than 90 days if there is not an unanswered Request for Evidence (RFE)
on an I-140, I-485, or I-765 that is pending with the USCIS for the applicant. The interim EAD may be obtained at
a local USCIS office. To obtain an
interim EAD, two USCIS-specified photographs and
the 485 and EAD receipt notices are needed.
Question
4. What
is a travel document and do I need it?
TOP
A travel document
(Advance Parole or AP) permits a person to travel outside of the United
States while
the adjustment application is pending. It is necessary if one needs to
travel during the pendency of the adjustment application and does not have
another status on which to reenter the U.S., namely H1B or H-4, L-1 or L-2.
The earlier doctrine, that leaving the U.S. while the adjustment application
is pending would be considered as an abandonment of the application unless
advance parole is received prior to traveling, is no longer valid for Hs and
Ls. Since July 1999, one may travel and reenter the U.S. on H or L status by
showing both the visa stamp in the passport and the petition approval,
without showing an AP. For a person in any other status (besides H1B or H-4,
L-1 or L-2), leaving the U.S. while the adjustment application is pending
would still be considered an abandonment of the application, unless advance
parole is received prior to traveling abroad.
Please note that one who is out of status is generally advised not to
travel abroad until the Adjustment is approved. A person who has accrued 180
days of unlawful presence and then travels abroad would not be readmitted to
the U.S. for 3 years. For a one-year accrual or more of unlawful presence, there is a 10-year bar on reentry. The advance parole document would
not protect one in this situation. Since 2000, the AP contains a specific
warning about the 3-year and 10-year bars. Individuals should seek attorney advice before travel if there is a possibility that they have accrued
unlawful presence at any time.
Question 5.
Do I need forms for my children born in U.S.?
TOP
No forms are
generally necessary for children born in the United States because they are U.S.
citizens. However, adjustment-of-status applicants are required to list their children on their applications for adjustment of status. In
addition, children born in the U.S. must be listed on the second page of the Affidavit of
Support (I-134) if they are wholly or partially dependent on the person for
support. It is advisable for adjustment applicants to take a copy of their
children's birth certificates to any immigration interviews to prove they are
United States citizens.
Question 6. I
don't have a birth certificate or I do have one but my name is not on
it, is misspelled, etc.
TOP
Documentation of birth must be submitted. A birth certificate is preferred.
If it is not available, the applicant may submit notarized affidavits from
his/her parents. If the applicant cannot obtain affidavits from his/her
parents, the applicant may submit affidavits from other relatives who are
older than the applicant and were at least 10 years old at the time of his/her
birth. The affidavits must include the individual's name, address, date of
birth, relationship to the applicant, and how the person knows when the
applicant was born. The affidavits must also include the applicant's name,
date and place of birth, and the names of both of the parents. Preferably,
these relatives cannot obtain any immigration benefit from the adjustment
applicant. Examples are grandparents, aunts and uncles.
In general, if a birth certificate is not available, one should
obtain: (a) a certificate of non-availability from the government
agency that would have issued the birth certificate if one were available,
and (b) two affidavits as described above. Either instead of the
non-availability certificate, or in addition, the applicant can submit any
other evidence of his/her date of birth, such as a school certificate,
religious certificate, certificate from the hospital or midwife, etc.
However, a letter from the consulate or a date of birth certificate
declaration based upon passport records would not generally be acceptable. If the birth certificate was registered late, the client should provide at
least one affidavit as described above.
Failure to submit proper proof of birth will generally result in the USCIS
issuing a request for evidence (RFE) for the birth certificate and or the
required affidavits.
Question 7. What do I need to take with me now that I
have my travel document?
TOP
If the applicant
is traveling using the Advance Parole (AP), then s/he just needs
that document, the passport, and a copy of the I-485 receipt notice.
The applicant never needs the EAD to travel.
If the applicant has obtained a travel document but prefers to use his/her
H1B or L-1 visa then the primary applicant would travel showing that valid
visa, along with the original H1B or L-1 petition approval notice. It is
helpful for the principal applicant to have an employment letter verifying
s/he is still needed by the employer. Dependents traveling on H-4 or
L-2 visas need to show the dependent visa, i.e. the H-4 visa stamp or
the L-2 visa stamp, along with the marriage certificate or birth certificate
showing status as a dependent of the principal nonimmigrant. The USCIS has
stated that one should also carry the I-485 receipt notice, though the USCIS
Port of Entry Inspectors do not usually ask to see it. One who is
maintaining H1B or H-4, L-1 or L-2 status has the choice of either
using that type of visa to travel or using the Advance Parole document. Just
because the applicant obtained an AP document does not mean that s/he is
required to use it. If the applicant has AP, it is a good idea to carry it
on the trip, even if s/he does not plan to use it, in case the 485 is
approved while s/he is outside the country and s/he needs to use the AP to
reenter. Once the 485 is approved, the H or L visa is no longer valid and
may not generally be used to reenter. As mentioned in Question 4, a traveler
must be aware of the 3- and 10-year bars.
Question 8. Do I need to extend the EAD and AP?
TOP
The
EAD is granted in one-year increments and the applicant must extend the EAD
in order to continue working prior to the completion of the adjustment
process if s/he is using the EAD to work. The applicant should file for
an extension of the EAD at least 6 months before expiration of the current
authorization. For adjustment applicants, advance parole is granted for
multiple entries and for the amount of time required to complete the
adjustment of status process, but does not exceed one year. Therefore, the
Advance Parole may also have to be renewed in advance of the applicant's
plans for any foreign travel. The USCIS takes about 3 or 4 months to approve
the AP and the EAD, though these times do vary by service center. Therefore,
filing at the earliest opportunity allowed is highly recommended. The
applicant must be in the U.S. to file the AP application and obtain the AP
document.
Question 9. Can
I extend my H1B while filing for and/or now that I filed my I-485?
TOP
Yes. Based on the
Doctrine of Dual Intent, the applicant may extend his/her H1B status while
filing for or after filing the adjustment of status. The same principle also
applies to H-4, L-1 or L-2 status. This rule was changed by Legacy INS in
July 1999, so those relying on earlier law regarding abandonment of status
should note that one may now choose to travel and extend the H1B
without jeopardizing the pending I-485 adjustment-of-status application.
Question 10. Does
the EAD void the H1B?
TOP
An H1B
nonimmigrant has the option to apply for an EAD. However, if the person
then uses the EAD to work for the same and/or another employer, s/he will no
longer be maintaining H1B status. Just having, but not using, an EAD does
not invalidate the H1B.
Question 11. Should
I save the time left on my H, in case my I-485 is denied?
TOP
Really, each case is different. One who is concerned over the possibility of
being
laid off or, for whatever reason, that the green card process may fall
through, generally prefer to keep the H1B status in order to be able to
file an H1B transfer with a new employer in case the I-485 is denied. Since
AC21 law was passed in October 2000, one may be able to extend the H1B
beyond the 6 years in certain circumstances. For example, if a labor
certification was filed more than 365 days ago, one generally will qualify for an H1B extension beyond the 6 years if s/he has maintained H1B
status. AC21 law may also enable a person to keep the I-485 going even after
losing his/her job, based on a similar job offer from another employer.
If the applicant plans to take an additional job or start a
business on the side, then s/he would be required to obtain the EAD
to work legally and s/he would not be considered to be maintaining H1B
status. However, it may still be possible to extend the H1B under certain,
limited circumstances. Also, if the applicant has been holding H-4 status,
but now wants to work and has obtained an EAD, it would not make sense
to extend the H-4 because that would be a non-working status. Some companies
are, understandably, reluctant to incur the expense of extending the H1B
after the I-485 is pending and the employee has obtained the EAD card to
work because it is generally not necessary to extend the H1B to maintain
status or to work. In general, I-485 denials are rare, but they do occur,
especially if one has any criminal record, has failed to maintain status,
or is subject to the 3- or 10-year bar (and is not protected under 245(i)
of the INA), or has a medical condition that could prevent or delay I-485
approval, or has been laid off and is unable to find the same or similar
employment with another sponsor.
Question 12. What
are the timeframes for the AP, EAD, fingerprints, and I-485?
TOP
The
processing time for an I-485 varies greatly. At times, it has taken between 1 ½
months and 3 years, depending on the service center where the application is
filed. For the EAD, processing is generally 90 to 180 days, while the
Advance Parole is generally 60 to 120 days. If the applicant has to travel
on an emergency basis, it may be possible to obtain an "expedite" on the
Advance Parole, though proof of the emergency should be submitted. Weddings
abroad are not generally considered emergencies. Some, though not all,
local USCIS offices handle Advance Paroles and EAD card applications. Some
of those local offices take as long as the service center, but others are
faster.
Question 13.
Can
I leave my sponsoring employer once I get my green card?
TOP
One may switch employers during the I-485 process if (a) the I-485 has
been pending for over 180 days and is not yet adjudicated and (b) the offer
of new employment is in the same or similar job. While the USCIS may use the
description of the job duties from the DOT or the O*NET to determine
similarity in jobs, they have verbally agreed that they may be willing to
consider a broader definition in the future. Besides job title and
description, the salary from the new employer would at least need to satisfy
concerns regarding the public charge provisions and should be as closed to
the amount listed on the labor certification as possible.
Clearly, the law before AC21 was passed in October 2000 required that a
person continue working with the employer that sponsored the green card for
at least 6 months to 1 year after obtaining the green card. Although AC21
allows the changing of employers if the I-485 is not adjudicated within 180
days, there is no change in the law with respect to the intention of the
employer to offer and the employee to undertake "permanent," full-time work
with the sponsoring employer for the job advertised. Keep in mind that a
green card job offer is legally considered a future job offer. Therefore,
the employee must have a good-faith intention to work for the employer after
the green card is approved, and the employer must have a good-faith
intention to employ the employee after the green card is approved. Even if
one worked for the sponsoring employer for several years while
pursuing the green card process, that would not count as future intent.
Generally, 6 months to 1 year after obtaining the green card is a safe time
period to change employment. Failure to stay at the sponsoring employer may
result in problems at the naturalization stage!
Question 14. Can
I leave my employer once my I-485 has been pending for more than 180 days?
TOP
Under Section 106 of the American Competitiveness in the Twenty-First
Century Act (AC21) of 2000, now incorporated into section 204(j) of the
Immigration and Naturalization Act (INA), an adjustment application remains
valid with respect to a new job if the adjustment application has been filed
and remained unadjudicated for 180 days or more. The new job must be in the
same or a similar occupational classification as the job for which the
application was filed.
Though all changes of employment while the I-485 is pending bear some risk,
it is best if the new job has the same or similar job title, duties, and
salary as the preferred job by the original sponsoring employer. In
addition, an August 2003 USCIS memo provides that one may still be eligible
to use AC21 even if an approved I-140 petition is revoked after the I-485
has been pending 180 days or more.
Question 15. What
is the process of I-485?
TOP
Once an immigrant
petition has been approved by the USCIS or the receipt notice for the I-140
is received from the USCIS, and the person's priority date is current, s/he may
file for adjustment of status (AOS). If a person is seeking AOS based on an
approved employer-based petition, s/he must be in a lawful nonimmigrant
status at the time of filing the adjustment application. The above would
also be true with regard to a family-based application for which there is a
quota. All family-based categories have quotas with the exception of the
"immediate relative" category (parent, spouse, or child under 21 of a U.S.
citizen). Immediate relative family-based immigrant petitions may be filed
concurrently with the adjustment application, and one who has entered
legally, but then overstayed, would still be eligible to adjust on this
basis.
Please note, in some cases the Adjustment may be filed and approved even if
the person is out of status. In an employment-based green card case, if one has overstayed or worked without authorization for fewer than 180
days, s/he is still eligible to file for Adjustment under 245(k) of the
Immigration and Nationality Act. Additionally, if the green card case
(employment- or family-based) was (a) started before April 30, 2001 and the
beneficiary was present in the U.S. on December 21, 2000, or (b) started
prior to January 15, 1998, then the person may be eligible for 245(i), which
is the penalty fee provision. The 245(i) Adjustment requires an additional
fee of to the USCIS. If an applicant is out of status or has any questions
about eligibility for Adjustment, s/he should speak with an
immigration attorney to obtain specific advice on that issue to plan the
best course of action for the particular situation. Please
note that one who was previously accused unlawful is generally advised
not to travel abroad until the Adjustment is approved. Also, 245(i) does
not protect one from being removed by the USCIS for failure to maintain
status.
Once an immigrant visa is available, an applicant files Form I-485
(Application to Register Permanent Residence or Adjust Status) and
supporting documentation with the USCIS. If the adjustment application is
employment based or arises within the jurisdiction of the Baltimore District
Office, the applications are filed with the USCIS service center with
jurisdiction over the applicant's residence. However, for a family-based
petition in any state other than Maryland, the I-485 is filed at the USCIS
district office with jurisdiction over the applicant's place of residence.
Thereafter, the USCIS will issue an appointment notice for an interview, if
an interview is needed. Please note that interviews are always required in
family-based cases but are not necessarily required in employment-based
cases. The appointment notice will indicate the documents that should be
brought to the interview. It often takes one year between the filing of the
application and the interview.
A decision on the adjustment application is usually made at the end of the
interview. Then, the applicant receives temporary evidence of permanent
residence. If a decision is not made at the end of the interview, or the
interview was waived, an approval notice will be sent to the applicant when
the application has been approved. After receipt of the approval notice, the
applicant must go to the USCIS office to receive temporary evidence of
permanent residence. At the time of this writing, applicants tend to receive the actual green card
within 2 weeks to a year and a half of being approved for permanent
residence. Meanwhile, the passport stamp is proof of permanent resident
status. The passport stamp is valid for one year and may be renewed
annually at the local USCIS office.
Question 16. What
is the process of CP?
TOP
Once the USCIS
approves an immigrant petition requesting consular processing, they send the approved petition to the National Visa Center (NVC). (If the I-140
approval notice indicates the petition file is being held at the USCIS in
anticipation of an I-485 application, then see the response to
Question
17 about
switching from I-485 to CP.)
The NVC handles
initial processing of the immigrant visa application. If the applicant's
priority date is current, the NVC will forward the petition to the consular
post listed on the petition and immediately send Packet 3 to the applicant
or the attorney. If the priority date is not current, the NVC will send Packet 3A and the petition will be stored at the NVC. NVC will send the
Immigrant Visa Application Processing Fee Bill to the applicant. Once the
Fee Bill has been mailed back to the NVC, they will send a packet of forms
(Generally, DS-230 Part I and USCIS instructions) to complete and mail back
to them for processing. Once the NVC processes the forms, they then
send the complete package of forms to the consulate for an interview.
The consulate notifies the applicant of the interview appointment
by sending Packet 4 to the applicant or the attorney. Packet 4 includes
additional instructions, including information about the medical appointment
and documents that must be completed before the interview. Each applicant
must attend a visa interview. The interview is often waived, however, for
persons younger than 14 years of age. Some consulates are posting the
Immigrant Visa (IV) interview schedule on their websites instead of mailing
Packet 4 to the candidate, but suggesting that the IV candidate obtain the
Packet 4 directly from the U.S. Dept of State (DOS) WebSite at
http://www.travel.state.gov/
or by some other
avenue. If the applicant is not inadmissible, and the basis for the
petition remains valid, the visa is issued. The visa is issued for
a validity period of six months. This means that the applicant must apply
for admission at a U.S. port of entry within that timeframe. If the visa is
denied, the applicant will receive a decision explaining the reason/s for
the denial.
Question 17. Can
I switch from CP to I-485 and vice versa?
TOP
It is relatively
easy to switch from Consular Processing to I-485. If the beneficiary's I-140
or I-130 indicates that it was approved for Consular Processing, the I-485
may be filed without any extra requests or extra steps.
However, if the approval notice for the I-130 or I-140 indicates that it is
approved for Adjustment of Status and that the USCIS will hold the case for
Adjustment of Status and a person now prefers Consular Processing, the
procedure is a bit more complicated. It is necessary then to file Form
I-824, the request for Consular notification.
The I-824 must be approved and the cable notification must be sent
to the Consulate so that the Packet 3 can be generated by NVC. From that
point, the case would proceed as described in the response to Question 16
on the CP process. Whichever means is used, the case number is then assigned and
the interview is scheduled. The Consulate then notifies the applicant by
sending Packet 4. Packet 4 includes additional USCIS instructions, including
information about the medical examination and documents that must be
completed before the interview. At the time of this writing, I-824s are taking more than a
year to adjudicate at most service centers.
Question 18. Can
I do both CP and I-485?
TOP
In general, the
answer is, "No." However, sometimes people start by one method, for example,
Adjustment of Status, and then change their minds. If one wishes to
do this, s/he should speak with an attorney and obtain some specific
advice that takes into account factors such as the expiration date of the
nonimmigrant status, whether there have been any status violations
in the past, and other relevant issues. If a Form I-824 cable request is
sent to request Consular Processing, the USCIS does interpret that action as
a request to withdraw the I-485.
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