of Employment Authorization
1. The Ability to Work in U.S. while I-485 Application is Pending
An alien applicant who has filed an I-485 application for adjustment of status may apply for an Employment Authorization Document (EAD) during the period that the application is pending, including any period when an administrative appeal or judicial review is pending. This is an unrestricted employment authorization that permits the alien to work for any employer. The alien may continue working pursuant to his or her existing nonimmigrant status, if such status permits employment.
USCIS normally takes the position that, after the application for adjustment of status is filed, the alien has immigrant intent and is no longer eligible for extensions or changes of nonimmigrant status, such as F, O, J, and B visa or status. For this reason, it is advisable to obtain an unrestricted EAD in most cases to work in U.S.
But aliens in H-1, L-1 status and their dependents are not prohibited from extending or maintaining their nonimmigrant status while their adjustment of status applications remain pending. An alien who continues to maintain H-1 or L-1 status rather than to obtain an unrestricted employment authorization will still retain such status, if the I-485 adjustment application is denied.
An Employment Authorization Document (EAD) is a work authorization document issued by USCIS. The aliens with EAD are allowed to work for any employer in the United States. It is important to understand that the aliens with EAD can work for any employer, and do not need other work visas, such as L1 visa or H-1B visa.
U.S. employers will check the work visa or EAD to make sure all employees are allowed to work in United States. The USCIS Form I-765 is used to file EAD application. To be eligible to receive the Employment Authorization Document, the common way is for an alien to file Form I-485 application after the Form I-140 approval for immigration visa application (Green Card application).
There are other ways to be eligible to apply for EAD, including L-2 visa holders (spouses of L-1 visa holders), and asylum applicants.
2. The Employment Authorization Document (EAD) Application
When you send the I-485 status adjustment application to USCIS, you may also submit the I-765 form for Employment Authorization Document (EAD) application, if you want to work in the United States while your I-485 adjustment of status application is under processing.
The Immigration and Nationality Act is the law that governs the admission of all persons to the United States. Part of the law about Employment Authorization Documents defines the employment authorization responsibilities of both employers and employees. USCIS issues Employment Authorization Documents to prove you are allowed to work in the United States. U.S. employers must make sure all employees are allowed to work in the United States. If you are not a citizen or a lawful permanent resident, you may need to apply for an EAD to prove you are allowed to work in the United States.
The specific categories that require an Employment Authorization Document include applicants adjusting to permanent residence status, asylees and asylum seekers, refugees, students seeking particular types of employment, people in or applying for temporary protected status, fiancés of American citizens, and dependents of foreign government officials. The U.S. permanent residents or conditional permanent residents do not need the Employment Authorization Document.
The benefits of the I-485 application and EAD include:
You eligible family member like spouse can apply for an EAD.
The primary applicant may take a part-time job or start a business, if the alien continue to work for the employer who filed the I-140 petition.
Application for EAD can be filed concurrently along with I-485, or at any time after it, as long as the I-485 application is pending.
The Form I-765 application offers the benefit of receiving an Employment Authorization Document. The I-765 application can be sent individually or with the I-485 adjustment of status. For the principal applicant, the EAD should be issued by the USCIS as soon as the preliminary screener determines the eligibility, unless the applicant is clearly ineligible for the adjustment of status, in which case the application should be routed for an expeditious denial.
Generally, the employment authorization application should be filed together with Form I-485 application for adjustment of status simultaneously, without paying the Form I-765 application fee. But if the employment authorization Form I-765 is filed separately with the Form I-485 application, an Form I-765 application fee should be paid to USCIS.
For dependent applicants, employment authorization may be issued as soon as the principal applicant case is documented, provided the dependent applicant has submitted satisfactory evidence of the relationship.
3. The Travel Document (Advance Parole) Application and the I-485 Status Adjustment Application
The Advance Parole or Travel Document is used to apply for admission to the United States upon return from abroad without having to obtain a visa from a U.S. Embassy or Consulate. If you need to travel outside the United States while your I-485 status adjustment application is pending, you need to send an I-131 form to USCIS for Travel Document application. The legal foundation for requiring these travel documents comes from the Immigration and Nationality Act (INA), which defines documents required to admit aliens and control their travel. Any immigrant who does not have the correct travel documents and not in valid H-1 or L-1 status will not be admitted to the United States.
As an alien, you need permission to return to the United States after traveling abroad, if you do not have a valid H-1 or L-1 status. This permission is granted through a travel document. Travel documents are also given to people who want to travel, but cannot get a passport from their country of nationality. You must file USCIS Form I-131, Application for a Travel Document, complete with supporting documentation, photos and applicable fees.
This Advance Parole or Travel Document is usually issued for the time it takes for the I-485 application to be processed, and it is valid for multiple entries. Once your Advance Parole (Travel Document) application is approved, you will receive 2 copies of form I-512. You must carry all 2 copies when you travel out of the U.S. for the first time. One copy will be taken by the the USCIS officer at the port of entry. The second copy is for you and should be used during all subsequent trips.
If the alien is required to seek Advance Parole, he or she should apply for an unrestricted employment authorization (EAD). This is because an alien who is paroled into the United States is no longer within the nonimmigrant status he or she had before departure. Also, any derivative status of an accompanying spouse or child arising from the principal alien's previous nonimmigrant status is lost once the alien returns under parole.
4. The Single-Document Work Permit and Advance Parole for I-485 Applicants
U.S. Citizenship and Immigration Services (USCIS) will issue employment (EAD) and travel authorization (AP) on a single card for certain applicants filing an Application to Register Permanent Residence or Adjust Status, Form I-485. This card represents a significant improvement from the previous practice of issuing paper Advance Parole documents.
The card looks similar to the previous Employment Authorization Document (EAD) but will include text that reads, Serves as I-512 Advance Parole. A card with this text will serve as both an employment authorization and Advance Parole document. The new card is also more secure and more durable than the paper Advance Parole document.
An applicant may receive this card when he or she files an Application for Employment Authorization, Form I-765, and an Application for Travel Document, Form I-131, concurrently with or after filing Form I-485. USCIS will continue to issue separate EAD and Advance Parole documents as warranted. Employers may accept the new card as a List A document when completing the Employment Eligibility Verification, Form I-9.
As with the current Advance Parole document, obtaining a combined Advance Parole and employment authorization card allows an applicant for adjustment of status to travel abroad and return to the U.S. without abandoning the pending adjustment application. Upon returning to the U.S., the individual who travels with the card must present the card to request parole through the port-of-entry. The decision to parole the individual is made at the port-of-entry. Individuals who have been unlawfully present in the U.S. and subsequently depart and seek re-entry through a grant of parole may be inadmissible and ineligible to adjust their status.
5. The Three or Ten Year Bar to Admission for Some I-485 Adjustment Applicants
Travel outside of the United States may trigger the three or ten year bar to admission for some adjustment applicants. This ground of inadmissibility is triggered if you were unlawfully present in the United States (i.e., you remained in the United States beyond the period of authorized stay) for more than 180 days before you applied for adjustment of status, and you traveled outside of the United States while your adjustment of status application was pending.
Under the Immigration and Nationality Act, aliens who depart the United States after being unlawfully present in the United States for certain periods can be barred from admission to lawful permanent resident status, even if they have obtained Advance Parole. Those aliens who have been unlawfully present in the United States for more than 180 days, but less than one year, are inadmissible for three years, and those who have been unlawfully present for a year or more are inadmissible for 10 years.
6. Can I Travel Outside the U.S. during my I-485 Adjustment of Status Process?
According to 8 CFR §245.2(a)(4)(ii), an I-485 application for adjustment is considered abandoned if the alien leaves the United States while the application is pending. However, the alien may apply for advance parole prior to departing the United States to ensure that his or her application is not deemed abandoned. Advance parole is available for any legitimate personal or business reason. USCIS also allows H-1 and L-1 nonimmigrants and their dependents to travel outside the United States without abandoning their applications for adjustment of status, making Advance Parole unnecessary for these H and L aliens.
Depending on your current nonimmigrant visa status, if you have a valid H or L visa or status, such as H-1B, H-4, L-1A, L-1B, L-2, you are free to travel at any time during the I-485 permanent residence process. However, if you are on some other type of visa or status, such as F, O, J, and B visa or status, there are often restrictions on travel, and the Advance Parole is required.
Therefore, if you are on a nonimmigrant visa other than H or L visas or status, you need an Advance Parole document in order to travel once the I-485 application to adjust status has been filed. An application for an Advance Parole Document is normally filed along with the I-485, but will often take from two to three months for approval. During this two-three month waiting, you would not be able to travel. After return to the U.S. using the Advance Parole document, you would need an Employment Authorization Document (EAD) to work.
7. Important Differences between the Labor Certification and the Employment Authorization Document (EAD)
The Labor Certification is an immigration process step. Its goal is to "protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers". The Labor Certification is a process of proving that there are no qualified U.S. workers for the position being offered. If there are qualified U.S. workers, then the alien worker cannot be offered the position on a permanent basis.
The Employment Authorization Document (EAD) gives the alien beneficiary authorization to work for any U.S. employer. The Labor Certification itself does not give the alien beneficiary any work authorization. Also, the alien worker must have a job offer from a U.S. employer in order for the employer to file the Labor Certification.
A U.S. employers file the Labor Certification application at the beginning of the alien employee's immigration process. However, an alien worker file the EAD application for himself/herself and spouse at the last step of the immigration process, with the adjustment of status or Form I-485 application. A Labor Certification is typically for a particular U.S. employer who files the Labor Certification with the Department Of Labor. But an alien worker can use an EAD to work for any U.S. employer.
Also, the law forbids alien workers from paying any of the costs associated with an Labor Certification, but alien workers are allowed to pay any and all of the costs associated with the EAD application with USCIS.
8. Unauthorized Employment and Form I-485 Application for U.S. Green Card
For the impact of the unauthorized employment during the EAD gap on the pending Form I-485 application, the I-485 applicants should keep in mind two points. First, 245(k) provision makes I-485 applicants still eligible for I-485 approval, if since last admission to the U.S. before filing of I-485 application, and they should have accumulated an aggregate of less than 180 days of unlawful stay or unauthorized employment, during the period either before or after filing of I-485 application.As a USCIS rule, a foreign national is barred from adjustment of status (Form I-485 application) for certain immigration-related violations. The alien applicants who are not in lawful immigration status on the date of filing the Form I-485, or who have failed to maintain lawful immigration status since entry into the U.S., generally are not eligible to file the Form I-485 and obtain approval. The rule is true of those who violate the terms and conditions of their admission inthe United States. The alien applicants who engage in unauthorized employment are also ineligible to file or obtain approval of the I-485. However, Section 245(k) provides a helpful exception to these general rules for those who may have violated their respective statuses for a limited period.
In calculating 180 days, they should aggregate both the days of unlawful stays and the days of unauthorized employment. Consequently, even if the unauthorized employment has lasted less than 180 days, the alien can be ineligible for I-485 application approval, if the total period of unlawful stay AND unauthorized employment add up to 180 days or longer.
9. The Application of Reentry Permit to Avoid Abandoning the Green Card
A Green Card holder (U.S. lawful permanent or conditional resident) can travel outside the U.S. and return, with some limitations. A reentry permit can help prevent two types of problems: 1) your Green Card becomes technically invalid for reentry into U.S., if you are absent from U.S. for one year or more; 2) your Green Card status may be considered as abandoned for absences shorter than one year, if you take up residence in another country.
A reentry permit establishes that a Green Card holder did not intend to abandon U.S. permanent residence status, and it allows you to apply for admission to U.S. after traveling abroad for up to 2 years without having to obtain a returning resident visa. If you are a Green Card holder planning to travel outside of U.S. for one year or more, it is important that you apply for a reentry permit
A reentry permit is used when a U.S. Green Card holder wishes to leave the United States for a period of between 1 year and 2 years, but does not want to be viewed as having abandoned the U.S. residence or Green Card. The USCIS Form I-131 is used to apply for a Reentry Permit.
As a Green Card holder, you must be in United States when applying for a reentry permit, and must attend the USCIS biometrics appointment before leaving United States. But you can request to pick up the reentry permit approval at a U.S. embassy in your home country, or you can ask that it be sent to an overseas address. The reentry permit itself looks similar to a passport, and will contain your photo. It will normally expire after 2 years.
10. My Current Visa Will Expire Soon, Can I Work while My Form I-485 Is Pending?
If you filed Form I-485 based on the approved Form I-140 immigrant petition prior to expiration of your I-94, you will remain in the authorized period of stay until your Form I-485 is adjudicated. It is not a status, but you are authorized to stay in the U.S. to await a decision on your case, and you are also authorized to apply for work authorization (EAD) and travel document (Advance Parole) while your Form I-485 application is pending. You can also apply for EAD and Advance Parole together with your Form I-485 application.
If your I-485 was filed prior to the expiration of your nonimmigrant status (I-94), then you remain lawfully present in U.S. and you will continue to be eligible for adjustment of status, as long as you do not work without authorization or violate other laws. You will not be overstaying, nor will you accrue any unlawful presence.
11. Date For Filing vs. Final Action Date, the Two-Tiered Visa Bulletin
To provide those who are stuck in immigrant visa quota backlog with the benefits of a pending adjustment, and to reduce waiting time where possible, U.S. Department of State’s monthly visa bulletin provides "Date For Filing" and "Final Action Date"
Previously, the monthly visa bulletin has served to update one date for each category of permanent residence applicant - the priority date cutoff. This one date determined whether you were eligible to submit your permanent residence application, and whether it was expected that there would be a visa number available, allowing your application to be approved.
Now, the “Date for Filing” determines whether or not you can submit the final immigrant visa application, and the “Final Action Date” indicates whether or not it is expected that an immigrant visa number will be available.
In many cases, the Date for Filing will be well before the Final Action Date, meaning that the alien applicants will be eligible to submit an application for permanent residence well before it is even possible for the government to approve that application.
Therefore, those stuck in a backlog can get benefits of a pending adjustment - apply for a combined EAD/AP card, which provides employment and travel authorization. Immigrants holding an EAD can work for any U.S. employer, which provides significantly more security and flexibility than the employer-specific H-1B petitions that serve as the basis for many immigrant’s employment authorization. For family-based applicants, the EAD may be their first-ever work authorization in the U.S., so getting that earlier is a great benefit.
Also, earlier filing of the final application means that employment-based permanent residence applicants will be eligible for AC21 portability earlier, meaning they can change employers, under certain circumstances, without being forced to re-start their permanent residence application from the beginning.
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