Questions of I-485
Q: What is the Adjustment of Status?
A: Adjustment of Status (AOS) refers to the procedure that allows foreign nationals already in the U.S., who are eligible to receive an immigrant visa and for whom immigrant visa number is immediately available, to apply for immigrant status with the U.S. Citizenship and Immigration Services (USCIS).
Adjustment of Status is the final stage of Green Card application. After the completion of this process, the applicant becomes a lawful permanent resident of the U.S. A applicant can opt either for I-485 application or Consular Processing (CP).
1) File form I-485: In this case, the applicant can file for adjustment of status using form I-485 and for family members while in US.
2) Consular Processing: In this case, applicant can apply for adjustment of status at the U.S. Consular office in their home country.
Adjustment of Status is a procedure allowing certain foreign nationals already in the U.S. to apply for immigrant status. Foreign nationals admitted to the U.S. in a nonimmigrant, refugee, or parolee category may have their status changed to a U.S. lawful permanent resident, if they are eligible to receive an immigrant visa which is immediately available.
Q: What is the purpose of the I-485 application to adjust status to U.S. permanent residence?
A: The I-485 Application to Adjust Status to Permanent Residence is a way to process the final stage of the permanent residence process for a foreign national who is already present in the U.S. and wishes to change from his or her current immigration status to that of U.S. permanent resident. In almost all cases, the foreign national must have been maintaining valid immigration status to be eligible.
An adjustment of status (I-485) application may be either filed concurrently with an I-140 petition, or it can be filed after the I-140 has been approved. If the I-140 is filed first and the applicant later decides he would like to file an adjustment of status application, the I-485 application can be added to a currently pending I-140 petition to be adjudicated at the same time.
An filed I-485 application allows a qualifying person to submit applications for employment authorization and travel permission, along with proof of financial support. The process involves filing the petitions and applications with supporting documents, getting fingerprinted, attending an interview, and answering any requests for additional evidence issued by USCIS.
Q: What are the general requirements of Adjustment of Status?
A: Adjustment of status refers to the procedure for becoming a lawful U.S. permanent resident without having to leave the United States. It should be distinguished from the traditional method of gaining permanent residence, which involves applying for an immigrant visa at a consular post abroad.
1) the alien makes an application for such adjustment;
2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
3) an immigrant visa is immediately available to him at the time his application is filed.
Q: What is the process of U.S. Permanent Residency (Green Card) application?
A: The following is the process for an alien applicant to seek U.S. permanent residency:
1) The alien applicant should first file Form I-140 application, Petition for Alien Worker, and also submit required evidence to USCIS.
2) Upon approval of Form I-140, the alien beneficiary should file Form I-485 application for adjustment of status, when an immigrant visa number is available for the alien beneficiary.
3) If the From I-485 application is approved by USCIS, the alien beneficiary is granted U.S. permanent resident status, and will receive a permanent resident card (Green Card) in mail.
Q: What is the visa number requirements for Adjustment of Status?
A: An immigrant visa's "Priority Date" is established by the date when your Form I-140 application is filed. Normally, the immigrant visa's priority date for Form I-140 application is not always current for some alien applicants coming from such countries as China and India.
You may apply for Adjustment of Status after your immigrant visa I-140 petition is approved by the USCIS, and an immigrant visa number is readily available to you. The visa numbers are limited by law for certain permanent residents. This means that even if the USCIS approves your I-140 immigrant visa petition, you may not get an immigrant visa number immediately. In certain cases, long time could pass between the time USCIS approves your I-140 immigrant visa petition and the Department of State gives you an immigrant visa number for I-485 approval.
Q: How to know if my immigrant visa number is "current" to file my Form I-485 application?
A: The visa bulletin of U.S. Department of State summarizes the availability of immigrant numbers. U.S. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security reports applicants for adjustment of status. The immigrant visa numbers allocations were made, to the extent possible, in chronological order of reported priority dates.
The Visa Bulletin is generally published around the middle of the preceding month. The Visa Bulletin reflects available visa numbers for cases with "priority dates" before the listed dates. To check the current Visa Bulletin, please visit http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html
Q: How do the USCIS adjudicators evaluate an Form I-485 application?
A: Simply presenting evidence which relates to the Form I-485 application requirements does not necessarily mean that the I-485 application should be approved, since the USCIS adjudicator needs to evaluate the submitted evidence.
If the USCIS adjudicator determines that the evidence does not meet the standard for the Form I-485 application, the additional evidence may be requested from the petitioner, or it is called Request For Evidence (RFE)
With the change of immigration regulation, rules on adjustment of status become more restricted. You must provide visa records to establish your and your family member's continuous lawful status since you or them entered the U.S. This can be a serious problem for those people whose status expired prior to their application for immigration was approved.
The burden of Form I-485 status adjustment application approval rests with the petitioner. The petitioner should provide substantial evidence to meet the regulation requirements. If the alien beneficiary is qualified, then the success depends largely on the way the application is presented to USCIS.
Q: What is the requirement of Grounds of Admissible for I-485 application?
A: The I-485 applicant should be admissible, i.e. he or she is not subject to the grounds of inadmissibility. Generally, foreigners in the U.S. without having been inspected or paroled are regarded inadmissible. The ineligibility to filing I-485 application include:
1) An alien entered the country in illegal way or in transit without a visa;
2) The alien is employed in the U.S. without USCIS approval. But this rule is not applicable for a person if he or she is an immediate relative of a U.S. citizen;
3) The alien can not adjust status if the alien is now or before has been out of status, or if the alien has ever broke the rules and terms of a non-immigrant visa, which requires that the I-485 applicant has never violated his or her status in any way).
Q: What are eligibility to I-485 adjustment of status for employment-based immigration?
A: An I-485 applicant should either have approved I-140 immigrant petition or filing it concurrently at any possible time. Also, an alien looking for adjustment of U.S. immigration status based on an employment-based visa should be in a lawful non-immigrant status at the time of I-485 filing. For a Labor Certification required case, the alien will also need a U.S. employer to sponsor him or her in order to get a Green Card. For Labor Certification waiver case, such as EB1-EA, EB1-OR, or NIW, the U.S. employer's sponsorship is not required.
For a Labor Certification required case, the U.S. employer must receive an approval from the U.S. Department of Labor (DOL) through Labor Certification, which is the first step in obtaining a U.S. Green Card. This certification also proves that there are currently no U.S. workers available for the post being taken by a foreign employee.
Q: What are eligibility to I-485 adjustment of status for family-based immigration?
A: An alien applicant should either have approved family based I-130 immigrant petition or filing it concurrently at any possible time. The family-based petition categories include parent, child, marital, fiancé, and other immediate relatives of either U.S. citizens or Green Card holders.
Q: What are the exceptions to the I-485 application requirement of maintaining lawful status in U.S.?
A: The following individuals are not required to maintain lawful status in order to adjust their status to U.S. permanent resident within the U.S.:
Immediate relatives of U.S. citizens;
Foreign medical graduates;
Special immigrant children;
Former employees of international organizations and family members;
Immigrants who have served honorably in the U.S. military.
Q: What are the benefits of filing I-485 application for Adjustment of Status
A: The benefits of Adjustment of Status includes:
1) You can maintain valid status in the U.S. while your I-485 Adjustment of Immigration Status application is being processed;
2) You and your spouse are permitted to apply for an Employment Authorization Document (EAD) as work permit, and take employment while your Adjustment of Status application is pending;
3) You can file Adjustment of Status application concurrently with immediate relative green card petitions, and employment-based first, second and third preference categories.
Q: Why the Adjustment of Status is convenient for most employment-based alien applicants?
A: Adjustment of status is convenient in the sense that applicants may simply remain in the U.S. while the I-485 application is adjudicated, and need not travel abroad for an interview. In fact, for most employment-based petitions, no interview is required unless the applicant has previously been out of status, or USCIS suspects fraud, or portability is invoked, or USCIS randomly selects an applicant for an interview.
Q: What are the Adjustment of Status Process with USCIS vs. with U.S. Consulate Processing
A: Consular processing and adjustment of status are two means to the same end - obtaining permanent resident status in the United States. If you opt for consular processing, you would apply for an immigrant visa through the Department of State and must attend an interview at a U.S. Consulate in your country of residence abroad.
If you opt for adjustment of status, on the other hand, you would remain in the United States and file an I-485 application with USCIS. Because these two separate agencies each have their own procedures and set of governing rules, there are pros and cons to both options. You should therefore take various considerations into account before making what is often a difficult decision.
Q: In the U.S Department of State's Visa Bulletin, there are sections of "Dates for Filing Applications". How to use the dates listed to file USCIS Form I-485 inside United States, for employment-based Green Card applicants' Adjustment of Status?
A: The procedures regarding immigrant visa availability have changed by U.S. Department of State, for the benefit of intending U.S. permanent resident (i.e., greencard) applicants. These changes are reflected in the Visa Bulletin which may be viewed at http://travel.state.gov/content/visas/en/law-and-policy/bulletin.html
The U.S. Department of State’s (DOS’s) monthly Visa Bulletin will now include two charts per visa preference category for Family-based and Employment-based applicants as "Application Final Action Dates", and "Dates for Filing Applications." In Sections 4.B. (Family-Sponsored Preference Cases) and 5.B. (Employment-Based Preference Cases), “Dates for Filing Applications” are listed.
The chart for "Dates for Filing Applications" reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file applications, regardless of priority date
For many employment-based Green Card applicants' Adjustment of Status using USCIS Form I-485 inside United States, U.S. Citizenship and Immigration Services (USCIS) will use the “Dates for Filing Applications” chart (in lieu of the “Application Final Action Dates” chart in paragraphs 4.A. and 5.A.) to determine when an application for adjustment of status (USCIS Form I-485) may be filed. Adjustment applicants may also visit "www.uscis.gov/visabulletininfo" for more information.
The statement in Visa Bulletin is consistent with USCIS’s announcement that each month it will “monitor the visa numbers and post the relevant DOS Visa Bulletin chart” on its website under “When to File”. An intending greencard applicant can then use this information to determine when to file an adjustment application (Form I-485 Application for Adjustment of Status). The “Dates for Filing Applications” chart may be used only when USCIS determines that additional immigrant visa numbers are available. Otherwise, per USCIS guidance, the “Application Final Action Dates” chart must be used by intending Adjustment of Status applicants.
Q: Where to file I-485 application?
A: The I-485 adjustment applications are normally submitted to the USCIS Service Center. Application is generally submitted by mail, and approved either by mail or after an interview at one of the USCIS district offices. If all the procedures go well, the applicant can accomplish the permanent resident status (Green Card) in the U.S. by stamping the immigrant visa in his/her passport.
Q: When can I file the the I-485 application to adjust status to Permanent Residence?
A: If at all possible and advisable, the application will be filed after the I-140 approval, or simultaneously with the I-140. However, there are times when the I-485 cannot be filed along with the I-140, often an immigrant visa is not yet available, or your priority date is not current.
Q: What do you mean the immediate availability of a visa?
A: This I-485 application requirement can be satisfied in one of two ways. The first instance relates to immediate relatives of U.S. citizens, who always have an immediately available visa. The second instance refers to those individuals who qualify for one of the employment-based or family-based visa preferences and have a current “priority date.”
Q: What is the Priority Date?
A: The priority date is the date the first paperwork for permanent residence is filed with a government agency. For an employer-sponsored case, this is either the date a Labor Certification is first filed with the Department of Labor, or if not a Labor Certification-based case then the date the immigrant petition (most often an I-140 Immigrant Visa Petition) is first filed with USCIS. For a family-sponsored case, this will be the date the I-130 Petition for Alien Relative is filed, which may or may not be the same date as the I-485 is filed.
Q: Why is the Priority Date important?
A: The Priority Date establishes the foreign national's place on line for an immigrant visa. There are limited numbers of immigrant visas available for each of the various categories. These categories are called Preference Classes. Each preference class has its own queue for immigrant visas, and the priority date and the preference class of the petition determine how long the person being petitioned for has to wait for a Green Card.
Q: What are the eligibility categories to file Form I-485 application?
A: You can file form I-485 under one of the following categories:
Form I-485 is based on an underlying Form I-140, Immigrant Petition for Alien Worker;
Spouse, parent, unmarried son/daughter under age 21 of a U.S. citizen with an approved or concurrently filed Form I-130;
Beneficiary of an approved Form I-130 filed by a qualifying relative, qualifying derivative, family-based beneficiary;
K-1 Fiancé(e) (and K-2 dependents) whose Form I-485 is based on an approved Form I-129F, and applicants who are beneficiaries of an approved Form I-360, as a battered spouse or child;
Diversity lottery winner eligible to file Form I-485.
Q: What are exceptions for the I-485 application fees?
A: There is a filing fee for the I-485 application plus a biometrics fee. The exceptions for the application fees are listed below:
There is no fee for applicants who are filing Form I-485 based on having been admitted to the United States as a refugee;
Applicants of 80 years of age or older are not charged a biometric fee;
Applicants under 14 years of age: filing with the I-485 application of at least one parent have a fee with discount.
Q: What is the medical examination process?
A: All I-485 applicants must pass a medical examination conducted by a civil surgeon approved by the USCIS. You can find the USCIS approved civil surgeon in your area in USCIS web site, or You can contact USCIS' National Customer Service Center at 1-800-375-5283 to find an approved civil surgeon in your area.
The civil surgeon will record the results of the examination on the Form I-693 and seal it an envelope which should be submitted to USCIS along with I-485 application. You are responsible for paying all doctor and laboratory fees for the exam. You must carry your passport or other form of photo identification, and bring your medical and vaccination history. If a condition is diagnosed which makes you inadmissible, you may still be eligible for immigration after completing treatment for the condition.
Q: What is the fingerprinting processA: When applying for I-485, you will be fingerprinted so the FBI can check criminal records. The USCIS accepts fingerprint cards prepared only by authorized sites such as Application Support Centers (ASCs), and U.S. Consular offices and military installations abroad.
Once you file for I-485, the USCIS will send you a letter with an appointment for fingerprinting at the nearest ASC location. You must have the letter with you when you go in for fingerprinting. There is a fee charge per person.
Q: How could you help my Form I-485 application?
A: To help you obtain U.S. Green Card easily and quickly, we provide a high quality and case-proven Complete Do-It-Yourself Package for form I-485 application of status adjustment, based on our extensive and practical immigration experience.
As added value in the Complete Do-It-Yourself Package of I-485 Application for Adjustment of Status to U.S. Permanent Resident, we provide comprehensive instructions on U.S. immigration application requirements and processing, we also let you know the required application documents, evidence, procedures, samples of petition cover letter and employment letter, samples of required forms and optional forms, an application check list, and detailed explanation of the form I-485 application related forms and issues. Also, all required application forms and optional forms are included in the package.
Q: After the EB1 Extraordinary Ability approval by using your EB-1A DIY package, I need to file Form I-485 application to get my Green Card. Please let me know how to find a medical doctor for the I-485 medical examination?
A: When an alien immigrant applys for Green Card by using Form I-485 for adjustment of status, the alien applicant should have a medical examination. The medical examination can be done by a medical doctor who is authorized by U.S. Citizenship and Immigration Services (USCIS). The authorized medical doctors are called also civil surgeons.
The U.S. Citizenship and Immigration Services has launched an improved online application, called "Find a Doctor" (https://my.uscis.gov/findadoctor), to assist applicants for U.S. permanent residence (Green Card) find doctors authorized to provide the medical examination required for Form I-485 applications for adjustment of status. The website also provides useful information regarding the medical examination process in the immigration context.
Many I-485 applicants need to undergo a medical exam performed by a USCIS authorized civil surgeon. Upon completion of the exam, the medical doctor will complete the report of medical examination and vaccination record (Form I-693), places it in a sealed envelope, and provides it to the alien applicant. This sealed envelope must accompany the Form I-485. The USCIS also now issues Requests For Evidence (RFEs) on long-pending I-485s to ask for updated medical examinations.
The "Find a Doctor" web tool provides the names and contact information for authorized civil surgeons in the area based on the address or zip code provided by the individual. It also lists what documents applicants should bring to their respective appointments and briefly explains the medical tests conducted during the exams.
Q: Could I get a Work Permit after I-485 application?
A: Applicants for adjustment to permanent resident status are eligible to apply for a work permit while their cases are pending. You should use USCIS Form I-765 to apply for a work permit (Employment Authorization Document, or EAD)
You do not need to apply for a work permit after you adjust to permanent resident status. As a lawful permanent resident, you should receive a permanent resident card that will prove that you have a right to live and work in the United States permanently.
Q: When can I file the Employment Authorization Document (EAD)?
A: Application for EAD can be filed concurrently with I-485 or any time after that, as long as I-485 application is pending. Your eligible family member like spouse can also apply for an EAD.
An approved EAD allows you or your spouse to work. The primary applicant may take a part-time job or start a business, as long as continue working for the employer who filed for the Green Card. Depends on the USCIS Service Center, the EAD may take few weeks to few months to get approval.
Q: What is the Advance Parole?
A: 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. You must fill Form I-131 for Advance Parole. There is a non-refundable filling fee to be paid by check or money order.
The Advance Parole is usually issued for the time when the I-485 application is pending, 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.
Q: How to obtain Advance Parole?
A: An alien must file Form I-131 - Application for Travel Document. The Advance Parole is permission to reenter the United States after traveling abroad. Advance Parole is an extraordinary measure used sparingly to allow an otherwise inadmissible individual to enter the United States due to compelling circumstances. By law, certain individuals must apply for a travel document and have Advance Parole approved before leaving the United States.
Attempts to reenter the United States without prior authorization may have severe consequences, since individuals requiring Advance Parole may be unable to return to the United States, and their pending I-485 applications may be denied or administratively closed. Applicants planning travel abroad should plan ahead since applicants can anticipate processing times of about 90 days, depending on the USCIS Service Center.
Q: What is the Refugee Travel Document?
A: Individuals who have been admitted in U.S. as refugees or granted asylum, including those who are applying for I-485 adjustment of status, do not need to obtain Advance Parole.
Instead, these individuals should apply for a Refugee Travel Document using Form I-131 and comply with applicable application requirements, such as biometric processing, prior to leaving the United States. Asylum applicants, asylees and lawful permanent residents who obtained such status based on their asylum status are subject to special rules with regard to traveling outside the United States.
Q: Can I travel outside the United States after I-485 application?
A: If you are applying for I-485 adjustment to permanent resident status, you must receive advance permission to return to the United States if you are traveling outside the United States without valid H or L visa or status. This advance permission is called Advance Parole.
If you do not obtain Advance Parole before you leave the country and you are not in H or L visa or status, you will abandon your I-485 application with USCIS, and you may not be permitted to return to the United States.
Q: What are the 3 years and 10 years inadmissible requirements?
A: Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 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.
Aliens who have been unlawfully present in the United States for more than 180 days, but less than one year, are inadmissible for 3 years; those who have been unlawfully present for one year or more are inadmissible for 10 years. Aliens who are unlawfully present, then depart the United States and subsequently reenter under a grant of parole, may still be ineligible to adjust their status.
Q: What about my family members' I-485 applications?
A: This is the stage where your immediate family members are formally a part of the process, in that separate I-485 Application to Adjust Status to Permanent Resident are filed for each family member. The same forms and documents filed for the main applicant are also filed for these family members, except the employment authorization applications. But you cannot obtain permanent residence for children over the age of 21 based upon your application.
Q: Are my dependents eligible for I-485 application? and what kind of documents are required?
A: Each family member who desires a U.S. permanent residence must file a separate I-485 application. The I-485 adjustment process involves the investigation of an individual's identity, health, criminal background, and the ability of financial support in the United States. The employment-based adjustment applications for family members must also be filed at a USCIS Service Center.
Q: What personal documents will my family and I need to have for the I-485 application?
A: You and family members must have birth certificates (each birth certificate must indicate full name, the full names of each parent, date of birth, and place of birth), marriage certificates and other relevant documents before the I-485 Application to Adjust Status to Permanent Residence can be filed. You may also wish to obtain records of all vaccinations received to provide to a USCIS approved physician when the required medical exam is performed.
Q: What are the requirements for immigration photographs?
A: The USCIS will accept standard passport photographs where the alien applicant is facing the camera. All photos must be identical. You can read the regulations at the USCIS website, or visit the Department of State's guidelines for photographs website to find out how you can take photos to meet the requirements.
Q: Will I have to appear for an interview?
A: Usually the interview is waived for most employment-based immigration applicants. The reason for an interview is to clarify any changes or corrections, and to verify that all documents are correct. You may be asked to carry any documents that were missing or incorrect. You may be asked for tax records and pay stubs.
Q: What happens if your 6-year limit on H-1 visa expires during this time?
A: Once you apply for I-485, your status is considered as applicant for adjustment of status, or I-485 pending. You can remain in the U.S. even after your 6-year limit has expired until the I-485 process is completed.
If you have not applied for I-485 and your 6-year limit is reached, then you must apply for 1-year or 3-year extension of H-1 visa. Whether you are qualified to apply for H-1 extension will depend on the status of your employment-based Green Card application.
Q: What happens when my I-485 is approved?
A: Normally, the Approval Notice/Welcome Notice will come to the alien applicant. You can take this notice to a local USCIS District Office and get a Permanent Residence stamp in your passport, which can be used to prove eligibility for all benefits to which US permanent residence entitles you, such as unrestricted employment or travel.
This stamp is temporary, normally one year in duration, but the status does not expire even if the stamp does. The foreign national will receive the actual permanent residence card (Green Card) in the mail, normally in one to six months from the date of the approval. The exact length of time it takes to get the card is often erratic.
Q: What is the temporary Green Card stamp?
A: If your interview is waived or if it is completed, and you meet all I-485 application requirements, you will receive an I-485 approval letter from the USCIS. You must go to the local USCIS service center with your passport and all I-94 and EAD cards. A temporary Green Card stamp (I-551) will be placed on your passport. This is an interim Green Card in case you need to travel out of the US. Within a few months, your Green Card will arrive in the mail, But it is not green in color, and looks more like a driver's license or a credit card.
Q: Can I appeal the I-485 decision if it is denied?
A: If your I-485 application to adjust status to permanent residence is denied, you will receive a letter that will tell you why the application was denied. An applicant can not appeal the USCIS decision of employment-based I-485 application.
The only applications for permanent residency of Form I-485 which can be appealed to USCIS are those based on a marriage which took place while the alien's application was in process, or those based on Section 586 of Public Law 106-429, adjustment of status for certain nationals of Vietnam, Cambodia and Laos. These appeals must be made to the Administrative Appeals Unit (AAU).
Q: How long is the approved I-485 valid?
A: The I-485 Permanent Residence status is valid indefinitely, as long as permanent residence is not abandoned through absence of six months or longer from the U.S.
Q: For the card of Single-Document Work Permit and Advance Parole, how is this card different from the previous Employment Authorization Document (EAD)?
A: The card looks similar to the previous Employment Authorization Document (EAD), but it 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. Employers may accept this card as a List A document when completing the Employment Eligibility Verification, Form I-9.
Q: Why did USCIS combine these benefits in one card of Single-Document Work Permit and Advance Parole?
A: With the new card, adjustment of status applicants no longer will have to carry both an EAD and a separate paper Advance Parole document while awaiting adjudication of their Form I-485 applications. Instead, applicants only will have to carry this one credit card-sized card. The card is more secure and more durable than the paper Advance Parole document.
Q: How do I receive the EAD and Advance Parole card?
A: You may receive this card when you file an Application for Employment Authorization, Form I-765, and an Application for Travel Document, Form I-131, concurrently with or after filing an Application to Register Permanent Residence or Adjust Status, Form I-485. You must file the Forms I-765 and I-131 at the same time in order to receive an EAD and Advance Parole card. Please ensure that you enter your name and address identically on Forms I-765 and I-131 that you file concurrently in order to receive the new card.
Q: If I receive this card, does that guarantee my re-entry into the United States if I travel?
A: No. This card authorizes parole, not admission, to the U.S. Parole is not an admission or entry. If you obtain this card, you may use it to travel abroad and return to the U.S. Upon arriving at a port-of-entry, you should present the card to a Customs and Border Protection (CBP) Officer to request parole. Issuance of an Advance Parole document does not guarantee that CBP will parole you into the U.S. If parole is granted, you will be permitted to come into the U.S. as a parolee, but will not have been admitted. 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.
Q: How much does this card cost? and How long is this card valid?
A: If you file Form I-485 to adjust your status as a permanent resident, NO additional fee is required to also file an application for employment authorization on Form I-765 and/or advance parole on Form I-131, you only need to pay the I-485 application fee. You may file these forms together. Please see http://www.uscis.gov/fees for the I-485 application fee.
Based on the availability of an immigrant visa, USCIS will issue this card for a period of one or two years. USCIS may also in its discretion issue the card for a longer or shorter validity period, depending on the particulars of the case.
Q: Will USCIS still issue separate EAD and Advance Parole documents?
A: Yes. USCIS will continue to issue separate EAD and Advance Parole documents as warranted. For example, 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.
Q: I have not filed the I-485 application yet, but I need to apply for the Work Permit for my wife. How do I get employment authorization for her as soon as possible.
A: To get the work permit or employment authorization, the Form I-765, Application for Employment Authorization, should be filed with the United States Citizenship and Immigration Services (USCIS). 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.
Q: If I lose or damage this card, how do I get another one?
A: To obtain a replacement card, you must file the Application for Employment Authorization, Form I-765, and Application for Travel Document, Form I-131, concurrently, with the appropriate fee for the I-765 AND the fee for the I-131.
Although individuals obtain their first card at no cost, they are required to pay the current application fee(s) for any card that USCIS replaces due to loss, negligence or damage. Visit http://www.uscis.gov/fees for more information.
Q: If I am not in U.S. after my Form I-140 approval, how do I do the Consular Processing in my home country?
A: The Consular Processing is a method that you can apply for an immigrant visa at a U.S. consulate overseas after your Form I-140 petition is approved and you are not in U.S. If the Form I-140 petition is approved and you are not in the United States, the USCIS will send the approved Form I-140 petition to the National Visa Center of Department of State. The National Visa Center will send you a notice of receipt. The National Visa Center will send you another notice indicating when you should submit the immigrant visa processing fees and supporting documentation.
After your fees and supporting documentation are received by the National Visa Center, they will send you a packet of forms and instructions to your foreign address. Thereafter, after submission of those forms, the U.S. consulate near your foreign address will send you an appointment letter including instructions for the medical exam, and it will indicate when you must appear at a U.S. consulate for an interview. After the interview, the U.S. consular will review your application, and decide either granting your visa or requesting the USCIS to reconsider your petition.
Q: I received a Request For Evidence (RFE) notice from USCIS after my submitting the Form I-485 application, what should I do?
A: An USCIS adjudicator may issue a Request For Evidence (RFE) on Form I-485 application cases that were clearly not approvable. The issuance of RFEs in these cases resulted in delays in the processing time. On the other hand, many cases could be approved if the applicants had been given the opportunity to provide additional information in response to the RFEs.
A Request for Evidence (RFE) from a USCIS Service Center is that the USCIS adjudicator is requesting additional evidence to address and support specific parts of the pending Form I-485 application. The petitioner may have certain days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives the response to an RFE notice, further action will generally occur within 30 - 60 days, but may take longer for some cases.
A Form I-485 application case may be denied if it is clearly not approvable. These are cases where basic regulatory requirements are missing. This includes cases where an applicant is categorically ineligible to receive an immigration benefit. USCIS also recognized that sometimes the adjudicators request full range of information when only a small amount is needed to make a final decision, so it wastes examination resources through the review of unnecessary, duplicative, or irrelevant documents.
Q: I received a Notice of Intent to Deny notice from USCIS after my submitting the Form I-485 application, what should I do?
A. The Notice of Intent to Deny (NOID) is that the USCIS adjudicator is giving notice that USCIS will deny the pending case, unless you provide certain extra documentation. The petitioner may have certain days indicated in the NOID notice to respond.
If the petitioner does not respond within the prescribed period, the petition may be denied. Once the USCIS receives your response to an NOID, further action will generally occur within 30 - 60 days, but may take longer.
Q: My NIW Green Card application has been approved, thank you very much for your very helpful NIW DIY package! I and my wife also filed the I-485 application, and we just get fingerprinted. We were told that we need to wait for the FBI name check. What is the procedure of the "FBI name check", and how long it would take?
A: All applicants for a U.S. immigration benefit are subject to criminal and national security background checks to ensure they are eligible for that benefit. U.S. Citizenship and Immigration Services (USCIS), the Federal agency that oversees immigration benefits, performs checks on every applicant, regardless of ethnicity, national origin or religion.
FBI name checks are also required for many applications. The FBI name check is totally different from the FBI fingerprint check. The records maintained in the FBI name check process consist of administrative, applicant, criminal, personnel and other files compiled by law enforcement. Initial responses to this check generally take about two weeks.
In about 80 percent of the cases, no match is found. Of the remaining 20 percent, most are resolved within six months. Less than one percent of cases subject to an FBI name check remain pending longer than six months. Some of these cases involve complex, highly sensitive information and cannot be resolved quickly.
Even after FBI has provided an initial response to USCIS concerning a match, the name check is not complete until full information is obtained and eligibility issues arising from it are resolved.
Q: I am a H-1B visa folder, and my wife with H-4 visa can not work now in U.S. I was told the Employment Authorization Document (EAD). How could my wife get Employment Authorization Document to work in U.S.?
A: 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.
Q: My EB2 National Interest Waiver (NIW) based Form I-140 petition is my employer sponsored. After the EB2 NIW I-140 petition approved by USCIS, my Form I-485 application is pending for more than 180 days. If I want to change job now by using the AC-21 rule, can my employer harm my Form I-485 Green Card application case? and what are the risks for my job change?
A: The U.S. employer does not control the Form I-485 application process, since it is filed directly by alien employee to USCIS, not filed by U.S. employer. If the Form I-485 application is based on the approved Form I-140 petition in which the employer is a sponsor, the employer can always withdraw or revoke the I-140 petition if they want.
If the Form I-140 petition has been approved already, and the Form I-485 has been pending for 180 days, the employer can still revoke the approved Form I-140 petition. However, this does not prevent the pending Form I-485 case from being approved by USCIS. According to USCIS AC-21 rule, an approved Form I-140 petition remains valid once the Form I-485 application has been pending for more than 180 days, even if the employer requests the revocation of the Form I-140 petition.
Q: I filed a concurrent Form I-140 and Form I-485 petitions in EB2 National Interest Waiver (NIW) immigration category several months ago, as self-petition without my employer's sponsorship. Now, I get a RFE (Request For Evidence) letter from USCIS for my Form I-140 petition, asking for more supporting materials and evidences for my work's benefits for U.S. national interests. Please let me now what may happen for my Form I-485 application if my NIW Form I-140 is rejected after the RFE response?
A: The concurrent Form I-140 and Form I-485 petitions are supposed to permit the alien applicant a number of benefits, including availability of work permit card (EAD), advance parole for international travel, and similar benefits to the accompanying family members.
Under the U.S. immigration law, the Form I-485 application remains intact unless it is denied as separate from the denial of Form I-140 petition. To prevent the abuse of concurrent Form I-140 and Form I-485 filing, the USCIS instructed its Service Centers to deny all the accompanying applications including Form I-485, Form I-485A, From I-765, and Form I-131 simultaneously, when the USCIS Service Centers deny the underlying Form I-140 petition.
Q: My employer recently filed Labor Certification for me. Since my wife needs the work permit to work in U.S., can we use the approved Labor Certification for her to work in the United States? or what is the difference between Labor Certification and the Employment Authorization Document (EAD)?
A: 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.
Q: My employer sponsored Form I-140 petition and Form I-485 application for me after the PERM Labor Certification was approved. The Form I-485 application for status adjustment has been pending for more than 180 days.
Because the employer's business slow, I changed my job using the AC-21 rule after the 180 day of Form I-485 pending. My new position gives me a different position title, with the same duties as the job described in the PERM Labor Certification form the previous employer. Will the job change and new job title affect my pending Form I-485 application?
A: The AC-21 rule's determination is governed by duties of the job rather than the job title, because the job titles often differ between companies, even for very similar positions. The AC-21 rule uses the terminology of "same or similar job classification." The alien employee's duties listed for the original job offer should be compared with the job duties of the new position to determine within which category he or she may fall.
The job categories from Department Of Labor (DOL) are generally fairly broad. In many situations, this does not present a significant problem. It is important to know that the job duties are generally important, not the specific job title.
Q: Are adjustment of status interviews always required for Form I-485 application?
A: In many Form I-485 application cases, usually where the alien immigrant is applying for a Green Card based on employment in the United States, USCIS will decide that an interview is not necessary. The alien applicant will receive its decision on Form I-485 application by mail in writing, without an interview. Or USCIS may request additional documents from the Form I-485 applicant, and then make a decision.
However, if the alien applicant are applying for Green Card of Form I-485 application based on marriage, the applicant mat be called in for an adjustment of status interview. That’s because USCIS is very concerned about people committing marriage fraud, and wants to have a chance to test the spouse on knowledge of everyday matters that will prove that you are sharing a life.
Also for Form I-485 application based on marriage, if USCIS suspects marriage fraud in a Form I-485 application case, it may separate you and your spouse in separate rooms, for what is called a “marriage fraud interview.” That means USCIS will ask each of you the same questions, and then compare your answers. If the answers don’t match up well, you can expect your Green Card to be denied.
Q: My Form I-140 application based on the EB1-Outstanding Researcher (EB-1B) was approved 6 months ago by USCIS. Thereafter, I filed the Form I-485 application and EAD (Work Permit) for adjusting my status for U.S. Green Card.
But then, I was laid off by my employer due to the company's business problem, and found a work in a small company with a lower pay. There is a gap between my approved EAD and the new employment, do you think it will be a problem for my Form I-485 approval with USCIS?
A: 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.Q: USCIS has approved my Form I-140 - Petition for Alien Worker, but my H-1B visa has close to 6-years limit and the immigration visa number is not available for me at this time. Therefore, I cannot file Form I-485 application inside U.S to get my Green Card. What is my solution? Please help!
A: There are two primary paths to U.S. permanent resident status (a Green Card). USCIS Form I-485 application of adjustment of status is a process by which an eligible person, who is already in the United States, can apply for U.S. permanent resident status without having to return to his/her home country to complete the processing of Green Card application.
Another primary path to U.S. permanent resident status is called "Consular Processing." An foreign person who is the beneficiary of an approved immigrant petition, such as Form I-140 approval or Form I-130 approval, and has an immigrant visa number immediately available may apply at a U.S. Department of State (DOS) consulate abroad for an immigrant visa, to come to U.S. and be admitted as a permanent resident. Thus, this pathway is referred to as “consular processing.”
The first step in consular processing is to determine if you fit into a specific U.S. immigrant category. Many immigrants become eligible for a U.S. Green Card through a petition filed by a family member (Form I-130 approval) or U.S. employer ( Form I-140 approval). The employment based immigration categories require the U.S. employer to file a Form I-140 - Petition for Alien Worker. The family based categories require that a U.S. citizen or permanent resident relative file a Form I-130 - Petition for Alien Relative.
If the immigration petition is approved (Form I-140 approval or Form I-130 approval) and if you are the beneficiary of the petition and living outside the U.S., USCIS can send the approved petition to the Department of State’s National Visa Center (NVC) for consular processing, where it will remain until an immigrant visa number is available.
Q: I recently received my Green Card, and I am planning to travel outside of United States for more than one year due to my work and family reason. How to keep my Green Card in the United States? and I can come back later without any problem to enter United States?
A: 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.
Q: I need to prepare the immigration medical exam for my I-485 status adjustment. What conditions would make an alien applicant inadmissible on medical grounds? and does it includes physical or mental abnormalities?
A: Many U.S. green card applicants need to have an immigration medical examination, and pay an exam fee to get immigration medical examination results, using USCIS Form I-693 (Report of Medical Examination and Vaccination Record). The immigration medical examination must be done when applying for an U.S. immigrant visa from overseas, or applying to adjust status inside the U.S. The purpose of the medical exam is to determine if an alien applicant has any health conditions that need attention prior to immigrating.
The following conditions would make an alien applicant inadmissible on medical reasons: 1) Alien applicants who are found to have a communicable disease of public health significance, including, chancroid; gonorrhea; granuloma inguinale; HIV/AIDS; infectious leprosy; lymphogranuloma venereum; infectious state syphilis; and infectious tuberculosis. 2) Immigrant visa and adjustment of applicants who have not received all of the required vaccinations. 3) Alien applicants who have current physical or mental disorders, with harmful behavior associated with that disorder, or past physical or mental disorders, with associated harmful behavior that is likely to recur or lead to other harmful behavior. 4) Alien applicants who are found to be drug abusers or drug addicts
There are other medical conditions, which can be categorized as Class B, and include physical or mental abnormalities, diseases, or serious/permanent disabilities. The waivers can be granted for Class B medical conditions. While it is natural to worry about the outcome of the exam, an alien applicant should be prepared to helping you relax.
There are a few exceptions, such as refugees and fiances adjusting status who are usually for situations where the person already had a medical exam overseas, as a condition of coming to the United States, and therefore does not need to repeat the exam for the next application. But the person might need to provide evidence of up-to-date vaccinations.
Q: My EB1A application has been approved. Thank you very much for the help of your Do It Yourself package of EB1A. Now my I-485 application is pending. I called the USCIS Customer Service Help Line for my case progress, and was told that it is in the process of "background security check". What kind of checks will be included in this background security check?
A: To ensure that immigration benefits are given only to eligible applicants, USCIS adopted background security check procedures that address a wide range of possible risk factors. Different kinds of applications undergo different levels of scrutiny. USCIS normally uses the following three background check mechanisms but maintains the authority to conduct other background investigations as necessary:
1) The Interagency Border Inspection System (IBIS) Name Check— IBIS is a multi-agency effort with a central system that combines information from multiple agencies, databases and system interfaces to compile data relating to national security risks, public safety issues and other law enforcement concerns.
2) FBI Fingerprint Check—FBI fingerprint checks are conducted for many applications. The FBI fingerprint check provides information relating to criminal background within the United States. Generally, the FBI forwards responses to USCIS within 24-48 hours. If there is a record match, the FBI forwards an electronic copy of the criminal history (RAP sheet) to USCIS.
3) FBI Name Checks—FBI name checks are also required for many applications. The FBI name check is totally different from the FBI fingerprint check. The records maintained in the FBI name check process consist of administrative, applicant, criminal, personnel and other files compiled by law enforcement. Initial responses to this check generally take about two weeks. In about 80 percent of the cases, no match is found.
Q: My wife and I were born in different countries, and we are waiting for the immigrant visa to become current to file Form I-485 application to get our Green Card. A friend of my mentioned the "chargeability". How could I use my wife's visa number for "cross-charge" to file Form I-485 application?
A: Immigration to the United States is numerically limited. This is controlled by an annual allocation of immigrant visa numbers. Each family-based immigrant category and employment-based immigrant category has its own limited immigrant visa number. Additionally, there is a per-country limit of 7 percent of the total immigrant visa numbers.
The maximum number of family-sponsored and employment-based preference visas that can be issued to citizens of any country in a fiscal year. The limits are calculated each fiscal year depending on the total number of family-sponsored and employment-based visas available. No more than 7 percent of the visas may be issued to natives of any one independent country in a fiscal year. Because of the combined workings of the preference system and per-country limits, most countries do not reach this level of visa issuance.
The foreign state of chargeability is a United States immigration concept – it is the country determined to be the applicant's origin. In general, the applicant's country of birth will determine their country of chargeability. For certain applicants born in oversubscribed countries such as India and China, approval to be chargeable to another country can significantly reduce the waiting time for their adjustment of status or consular processing of their green card application. This process is also known as alternate chargeability.
The basic rule of chargeability is that one is charged against the quota for the country of his or her birth. This determination is not tied to citizenship or nationality. A person born in a particular country is subject to that country's quota. For example, a potential immigrant is born in India. He subsequently becomes a Canadian citizen. Unless this individual fits within one of the exceptions discussed below, he will still be subject to the backlogged quota for India, even as a Canadian citizen.
In some circumstances, an immigrant can cross-charge to the country available to his or her spouse (provided that the spouse is immigrating also). For example, cross chargeability would usually be available if a person born in India were to marry a person born in Canada. If a U.S. employer filed an employment-based, second-preference (EB2) petition on behalf of the individual born in India, she or he would be able to use the Canadian chargeability, if immigrating with the spouse. Historically, this would mean immediate eligibility for immigration benefits under the Canadian quota, rather than many years of waiting under the heavily-backlogged Indian quota.
Q: For USCIS Form I-864 Affidavit of Support, what are the differences between sponsor and joint sponsor?
A: USCIS Form I-864 Affidavit of Support is a contract between a sponsor and the U.S. Government. Completing and signing Form I-864 makes the sponsor, and show on this affidavit that the sponsor have enough income or assets to maintain the intending immigrant and the rest of sponsor's household at 125% of the Federal Poverty Guidelines. By signing Form I-864, the sponsor agrees to use resources to support the intending immigrant named in the affidavit, if it becomes necessary.
An affidavit of support is a document an individual signs to accept financial responsibility for another person, usually a relative, who is coming to the United States to live permanently. The person who signs the affidavit of support becomes the sponsor of the relative coming to live in U.S. The sponsor is usually the petitioner of an immigrant petition for a family member. An affidavit of support is legally enforceable; the sponsor's responsibility usually lasts until the family member or other individual either becomes a U.S. citizen, or can be credited with 40 quarters of work - usually 10 years.
The submission of this affidavit may make the sponsored immigrant ineligible for certain Federal, state, or local meanstested public benefits, because an agency that provides means-tested public benefits will consider the sponsor's resources and assets as available to the sponsored immigrant when determining his or her eligibility for the program.
If the immigrant sponsored in the affidavit does receive one of the designated Federal, state or local means-tested public benefits, the agency providing the benefit may request that the sponsor to repay the cost of those benefits. That agency can sue the sponsor if the cost of the benefits provided is not repaid.
A joint sponsor is someone who is willing to accept legal responsibility for supporting the family member with you. A joint sponsor must meet all the same requirements as you, except the joint sponsor does not need to be related to the immigrant. The joint sponsor, or the joint sponsor and his or her household, must reach the 125% income requirement alone. You cannot combine your income with that of a joint sponsor to meet the income requirement.
Q: I have applied for Form I-485 adjusting status, based on PERM Labor Certification and Form I-140 approval, do I have to go through an interview process?
A: If you have applied for a Green Card within U.S. through the procedure known as "adjustment of status" using USCIS Form I-485, it is likely to be called in for an interview by USCIS (U.S. Citizenship and Immigration Services), as the last step in your immigration application process. For employment-based Form I-485 application, it is very possible that the interview will be waived. But for marriage-based Form I-485 application, these will be certainly an interview.
If you are called for an interview for some reason, with proper preparation, you should not fear the adjustment of status interview, and it does not mean that your application for adjustment of status has been singled out for extra scrutiny. An immigration interview is a normal part of the process, allowing USCIS to confirm the information you have provided, and review all the facts with you present.
USCIS may skip the interview in some cases, or requires only the immigrant to attend, not the petitioner or sponsor, if the petition case is especially clear, and not likely to involve fraud or other complicated circumstances.
If you applied to Form I-485 adjusting status, based on marriage to a U.S. citizen or lawful permanent resident, it is certainly that you and your U.S. spouse will be called in for an immigrant interview. The interview is to ensure that the marriage is genuine, and not merely entered into for the purpose of obtaining a Green Card.
Q: I have a Form I-485 application pending, can I accept a job promotion as a manager from my employer, and remain eligible to Form I-485 application to adjust my status to U.S. permanent residence?
A: USCIS adjudicator will evaluate the promotion situation on a case-by-case basis. The alien applicant's job duties for each position, the SOC codes for each position, and any differences in the salaries will be the determining factors, as to whether the alien applicant remains eligible for Form I-485 adjustment of status.
Whether the new position is considered a demotion, a simple move, or a promotion within the organization, the alien applicant's job duties must be sufficiently similar.
USCIS adjudicator will review the totality of the case, based on the regulation in INA section 204(j) and 106(c) of AC21, to evaluate the job mobility within the same or similar occupational classification, for qualifying alien applicant with the pending Form I-485 adjustment application.
Q: My employment based Form I-140 application has been approved in the category of EB1 Extraordinary Ability, with the great help of your excellent Do-It-Youself package of EB-1A. Now, I need to file Form I-1485 for myself, my wife and my son to get the Green Card for my family members. Do I need to file Form I-864 as an Affidavit of Support?
A: If you have family members as your dependents to file Form I-485 applications after the employment-based Foprm I-140 approval, then you should file a Form I-864 as your financial support for your dependents.
The Form I-864 is legally required for many family-based and some employment based immigrants to show they will have adequate means of support after immigration to the U.S. Generally, the following intending immigrants need an Affidavit of Support:
1) Applicants for family-based immigrant visas;
2) Applicants for employment-based immigrant visas where a relative filed the immigrant visa petition.
As the person completing Form I-864, you are the sponsor. By signing this form, you agree to financially support an immigrant who applies for adjustment of status to become a lawful permanent resident. In most cases, the sponsor must be the individual who filed the immigrant petition for the intending immigrant.
If the individual who filed the visa petitioner or a substitute sponsor signs this form, but is unable to meet the financial requirements, another individual must also sign a separate form as a joint sponsor to meet the financial requirements. Each sponsor needs to submit taxes and W2’s if he or she is not using an IRS printout, or provide a reason for not filing taxes.
Q: I had a H-1B visa vefore. I have accrued more than 2 months of unlawful stay in U.S., will I be eligible for Form I-485 application for adjustment of status? What are the penalties for accruing unlawful stay?
A: If you are currently in United States unlawfully, then it is unlikely you are qualify to file USCIS Form I-485 application for adjustment of status inside U.S. The Form I-485 application is for people who has valid visa or status in the United States.
If you came to U.S. on a temporary visa, such as a tourist visa, H-1B or L1 visa, F-1 visa, J1 exchange visa, or other visa categories, you are required to either leave the U.S. before your authorized stay expires, or successfully apply for an extension of your stay. You can find the date that you are expected to leave U.S. on the I-94 card that the U.S. border official placed in your passport when you entered U.S.
If you apply for a visa or status renewal, you should make sure to submit the renewal application, such as Form I-539 application, to U.S. Citizenship and Immigration Services (USCIS) before the date shown on your I-94 card. Once you have submitted your renewal application, you can lawfully stay in the United States while awaiting a decision.
If you become eligible for Green Card application for U.S. permanent residence while you are on a nonimmigrant visa, you are then able to submit Form I-485 application for adjustment of stats before your visa expires, and receive a Green Card. However, if your visa runs out before you submit your Form I-485 application for adjustment of status, you are considered to be in the United States unlawfully, and you may not be apply for adjustment of status inside United States.
The U.S. immigration law has created various penalties for people who stay in U.S. unlawfully, such as not ineligible to apply for a Green Card from within the United States. But you may be able to go to a U.S. consulate in your home country and complete your Green Card application process there - referred to as the "consular processing" procedure.
But there are other penalties for unlawful stay in Unoted States. If you have spent more than 180 days in the United States unlawfully, and then leave U.S., such as for an immigrant visa/green card interview, you will be required to spend three years outside the United States before returning. If your unlawful stay was for one year or more, than you face a ten-year bar on returning.
Q: I will file Form I-485 application for my status adjustment after the Form I-140 approval, do I need to file Form I-485 supplement J also?
A: U.S. Citizenship and Immigration Services (USCIS) has released Form I-485 supplement J, a form used in conjunction with Form I-485 application to adjust status. The Form I-485 supplement J is used to provide confirmation of job offer from U.S. employer, and to notify the USCIS in cases where the job is ported to a new employer or a new job.
Form I-485 supplement J provides a standardized way of verification that a job offer continues to exist, or of notifying the USCIS of a new job offer. Although this does not make any substantive changes to the requirements to qualify for an employment-based Green Card application, it is still important to understand the requirements for when this supplement must be submitted.
The Form I-485 supplement J should be included with Form I-485 application submission. The supplement J is used for one of the two purposes:
1) Confirm that the job offered to you in Form I-140 remains a bona fide job offer that you intend to accept once your Form I-485 is approved; or
2) Request job portability under AC-21 job portability to a new, full-time, permanent job offer that you intend to accept once your Form I-485 is approved. This new job offer must be in the same or a similar occupational classification as the job offered to you in Form I-140 that is the basis of your Form I-485.
In adjudicating Supplement J, U.S. Citizenship and Immigration Services (USCIS) does not make a determination whether you have current work authorization with an employer. The basis for adjustment of status to lawful permanent resident under a valid Form I-140 is not actual (current) employment. Rather, the basis is prospective employment. Therefore, the adjudication of Supplement J, for applicants requesting job portability under AC-21 job portability, is primarily limited to a determination of whether you have a bona fide job offer from a U.S. employer that is in the same or a similar occupational classification as the position for which the underlying Form I-140 was filed and approved.
Individuals seeking or granted a EB2 National Interest Waiver (EB2 NIW) of the job offer requirement, and individuals seeking or granted classification as an alien of EB1 Extraordinary Ability (EB-1A), do not need to file Supplement J. Because these employment-based immigrant visa categories are not tied to a specific job offer. Also, individuals seeking or granted classification as an alien of EB1 Extraordinary Ability or seeking or granted a National Interest Waiver of the job offer requirement do not have to file Supplement J, when filing Form I-485 or to request job portability under AC-21 job portability.
Q: My Form I-140 petition in the EB-1A category has been approved, and I will file Form I-485 application to get my Green Card, do I need to file Form I-485 supplement J?
A: Unless you are filing Form I-485 together with Form I-140 that names you as the principal beneficiary, you must file Supplement J at the time you file your Form I-485 to confirm that the job offered to you in the underlying Form I-140 is still bona fide and available to you. USCIS may request that you file Supplement J again prior to final processing of your Form I-485.
If the alien applicant is filing Form I-485 application based on an approved or pending Form I-140 petition, the Form I-485 supplement J is generally required.
If the alien applicant having a pending I-485 application qualifies for AC-21 job portability, a supplement J must be submitted to the USCIS to request that the previously filed I-485 adjustment of status application be approved, on the basis of a change of employers or a new job with the same employer, if the new employment is considered a “a same or similar” position. Also, the supplement J may be filed proactively by the alien applicant at any time. Otherwise, prior to approving the I-485 application, the USCIS may issue a Request For Evidence (RFE) or Notice of Intent to Deny (NOID) to request an updated supplement J.
Supplement J must be filled out in its entirety, and must be signed in the original. The supplement requests information about the sponsoring employer and the proposed job. There is no filing fee for submitting a supplement J.
But the supplement J is not required in the following situations:
1) Form I-485 supplement J is not required, if the Form I-140 petition is being filed concurrently with the Form I-485
2) Form I-485 supplement J is not required, if the I-485 is being filed based on a National Interest Waiver (NIW) I-140 application;
3) Form I-485 supplement J is not required, if the I-485 is being filed based on a EB1 Extraordinary Ability (EB-1A) I-140 application.
Individuals seeking or granted a EB2 National Interest Waiver (EB2 NIW) of the job offer requirement, and individuals seeking or granted classification as an alien of EB1 Extraordinary Ability (EB-1A), do not need to file Supplement J. Because these employment-based immigrant visa categories are not tied to a specific job offer.
Also, individuals seeking or granted classification as an alien of EB1 Extraordinary Ability or seeking or granted a National Interest Waiver of the job offer requirement do not have to file Supplement J, when filing Form I-485 or to request job portability under AC-21 job portability.
Q: My Current J1 Status Will Expire Soon, Can I Work while My Form I-485 Is Pending?
A: 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.
Q: I have a pending Form I-485 application, and now I want to change job for "AC21 job portability". Do I need to file Form I-485 supplement J to USCIS, to let them know that my I-485 application should be approved on the basis of a change to a “same or similar” position?
A: The U.S. Citizenship and Immigration Services (USCIS) now requires most new employment-based Form I-485 adjustment of status applications to be accompanied by an Form I-485 supplement J. There are two situations in which I-485 supplement J must be filed:
1) The supplement J must be filed concurrently with form I-485, if it is based on a pending or approved form I-140, unless the Form I-140 application is an EB1 Extraordinary Ability petiiton or a Eb2 National Interest Waiver (NIW) petition.
2) If an alien applicant has a pending Form I-485 application and qualifies for AC21 job portability, supplement J must be submitted to the USCIS to request that the Form I-485 application be approved on the basis of a change to a “same or similar” position. In this case, the alien applicant may file the supplement J upon the employment change.
If supplement J is filed concurrently with the I-485, the USCIS will simply issue a receipt notice for the I-485. No separate receipt will be issued for the supplement J.
If supplement J is submitted for AC21 purposes regarding a change in employment, the USCIS will issue a receipt notice to confirm receipt of the supplement. The USCIS will then adjudicate the form, and either issue an approval or denial on the AC21 request.
Q: What kind of evidence that I can provide to apply for job change by using job portability under AC21, which my I-485 application is pending?
A: U.S. Citizenship and Immigration Services (USCIS) has issued the finalized policy memorandum on determining whether a new job is the same or similar in the context of a job change pursuant to the American Competitiveness in the Twenty First Century Act (AC21). The memo provideed guidance for USCIS adjudicators reviewing applications for adjustment of status for Form I-485.
AC21 allows an I-485 applicant to move to a position that is in the “same or similar occupational classification” as the one set forth in the underlying PERM labor certification once the I-485 has been pending for at least 180 days. The memo provides guidance to adjudicators on the meaning of “same or similar occupational classification” and how AC21 cases are to be evaluated.
The key points in the AC21 portability include:
* The standard of evidence is “preponderance of the evidence,” which is defined as “more likely than not” or “probably true.”
* Evidence considered includes the U.S. Department of Labor (DOL) standard occupational classification (SOC) codes.
* Other evidence can include: job duties, skills, experience, education, training, licenses, and any other material and credible evidence.
* AC21 permits lateral moves, career progression, and/or self-employment.
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