Overview and FAQ: Adjustment of Status (AOS)
Definition
Adjustment of Status is the final stage of the green card process allowing certain foreign nationals already in the U.S. to apply for immigrant status. Foreign nationals admitted to the U.S. in a nonimmigrant category may have their status changed to that of lawful permanent resident if they are eligible to receive an immigrant visa and one is immediately available.
Eligibility
To be eligible to apply for permanent residence through the adjustment of status process, the following criteria must be met:
- The applicant and qualified dependents must be physically present in the U.S. at the time the application is filed;
- The foreign national must be the beneficiary of an approved I-140 immigrant petition;
- The applicants must have entered the country legally;
- The terms of the foreign national’s non-immigrant status must not bar adjustment of status;
- The applicants must not be, or ever have been, “out of status” or engaged in any unauthorized employment.
Immediate Availability of an Immigrant Visa
An immigrant visa must be immediately available to the employee at the time his or her application for adjustment is filed. The Department of State Visa Bulletin shows the priority date for each immigrant category. Please click here for more information on the Visa Bulletin, priority dates, and retrogression.
Ø Can I stay in the U.S. if my priority date retrogresses after my I-485 AOS application is filed?
If an adjustment application is properly filed at the time that the individual’s visa priority date is current but the priority subsequently retrogresses before the case is adjudicated, the adjustment cannot be completed. However, the applicant will be permitted to remain in the United States until the priority date becomes current again, provided that he or she remains eligible for adjustment.
Procedures and Forms
Form I-485 Adjustment of Status Application: The adjustment of status application is filed with the regional USCIS Service Center having jurisdiction over the foreign national’s place of residence on Form I-485. The foreign national must also file “Supplement A” to this form if paying a penalty fee in order to adjust status. This application must be accompanied by biographic information (Form G-325A), tax information (IRS Form 9003), Affidavit of Support (Forms I-134 for applicants with approved Employment Based petitions and the I-864 for applicants with approved Family Based petitions), results of a medical examination, and various supporting documentation such as marriage and birth certificates, records of non-immigrant status and employment verification letters. The USCIS will notify the foreign national of a scheduled time to have his or her fingerprints taken by a USCIS official (Form FD-258).
AOS Interview: The USCIS will then review the application for permanent residence and schedule an interview. Generally, the USCIS will waive the requirement of an interview for beneficiaries of an Employment Based petition (I-140). If the USCIS finds the evidence satisfactory, it will approve the application for permanent residence. At that time, the USCIS will place a permanent resident stamp (I- 551) in the foreign national’s passport. The foreign national is, at that moment, a permanent resident, but will not receive his or her actual alien registration card, also known as a “green card,” until the USCIS completes “card processing.” (See “Replacement of Green Card”).
Employment and Travel: It is usually wise to also file applications for employment authorization and travel permission for each family member with the Adjustment of Status Application.
Ø Question: Who will contact me about starting the I-485 application (variations: Should I contact my Avani attorney or my outside counsel about my green card process? I have contacted my outside counsel, but they have not contacted me, so what should I do now?)?
Answer: The Department of State generally announces the next month’s Visa Bulletin in the middle of the current month. The dates in this new Bulletin go into effect on the first day of the next month. Outside counsel will contact you within a few days of the release of the next month’s Visa Bulletin if your priority date will be current as of the first day of the next month. They will ask you for the documents they need to file your I-485 application.
While you are waiting to be contacted, please start scheduling your medical appointments and obtaining the necessary documents for your I-485 process. Please note that these steps are the most time consuming parts of the I-485 process for most people, so your efforts now to collect these documents will help outside counsel to file your case faster. Please see the information below for detailed guidance on how to prepare the documents for your AOS application.
Ø Question: What do the adjustment of status documents look like? Can I look at them, so I know what information I must provide to outside counsel?
Answer: Please click here to review or download the documents used in the adjustment of status application process.
- I-485: Application for Adjustment of Status
- G-325A: Biographic Information
- Form I-765 – Application for Employment Authorization
- Form I-131 – Application for Travel (Advance Parole)
Ø Question: When do I need to be in the U.S. during the I-485 process and when can I and my dependents be out of the country? How soon can I leave the U.S. if I need to travel abroad?
Answer: The answers to these questions depend on where you are in the I-485 process:
- Pre-I-485 filing: You and your dependents do not need to be in the U.S. the entire time that work is being done on the I-485 application, but you will need to be in the U.S. at some point in this time to complete the medical exam, as you must have your exam in the U.S. If you are going to be out of the U.S. while outside counsel is preparing your I-485 application, you will still need to be accessible by e-mail and/or phone to address any additional needed documents or information.
- At the time of the I-485 filing: You and your dependents who are filing I-485 applications MUST BE IN THE U.S. on the day that USCIS receives your I-485 application. Otherwise, USCIS will reject the application, either now or when they realize that you were not here on the day that your I-485 application was filed.
- After the I-485 application is filed: For individuals in H-1B/H-4 or L-1/L-2 status, you and your dependents should remain in the U.S. until the receipt notice for the I-485 application is issued by the USCIS. This may take several weeks or more. Upon issuance of the I-485 filing receipt, you will be able to travel using the original I-485 filing receipt and all documents currently required for travel using a valid visa stamp (example, visa-exempt Canadian nationals). If you and your dependents are in nonimmigrant status other than H-1B/H-4/L-1/L-2 at the time that your I-485s were filed, you will need to remain in the U.S. until the advance parole travel document application is approved, or you will be deemed to have abandoned your I-485 application. This may take several months or more.
Ø Question: I recently changed jobs within my company. I had an I-140 petition approved based on my old job, but my new job required a new PERM filing. This PERM application is still pending. When can I file the I-485 application?
Answer: You have to wait until the PERM application that matches your current job is approved. You cannot file your I-485 application based on your already approved I-140 petition because you no longer intend to work in that job. Once your new PERM application is approved, an I-140 petition and I-485 application can be filed at the same time as long as your priority date is still current.
Ø How can I check the status of my Adjustment of Status application?
You may check visa status by using the USCIS visa status service.
Ø How do I apply for Adjustment of Status in the U.S.?
The documents required for the I-485 process may vary based on each person’s facts. However, the following documents are required for all I-485 applicants. For the I-485 application, your attorney will need COPIES of the following documents for you and all family members who will be applying with you (i.e., your spouse and any unmarried non-U.S. citizen children who are under age 21). Your attorney will NOT need originals of the documents, except for the photos in item 1. You should not cut any copies down to the actual size of the document copied. All copies should be on 8½” by 11” paper.
Outside counsel will guide you through the document collection process and provide a questionnaire to you for collecting the required information. In general, the following documents must be prepared for a typical I-485 Adjustment of Status Application.
I. Form I-485 Application to Adjust Status to Permanent Resident:
- Two photographs;
- Sealed medical examination results (Form I-693);
- Form G-28, Notice of Entry of Appearance as Attorney for the employee and each dependent;
- Form I-485, Application to Adjust Status as Permanent Resident;
- Copy of the I-140 Immigrant Petition Approval Notice (Form I-797) for the primary applicant. If you do not have an I-140 approval notice, you may also provide the I-140 Receipt Notice. If the I-140 petition has been filed for you, but you have not yet received your receipt notice, then please provide a copy of your I-140 petition filing.
- One copy of your pay stub for the last two months;
- Copy of marriage certificate (spouse’s application only);
- Copy of your proof of birth;
- Form G325A, Biographic Information (4 signed originals);
- Copy of complete passport, including all entry stamps;
- Copy of your most recent I-94 card; and,
II. Form I-131 Application for Advance Parole Travel Document:
- Two photographs;
- Form G-28, Notice of Entry of Appearance as Attorney for the employee and each dependent;
- Form I-131, Application for Advance Parole Travel Document;
- Copy of biographic page of passport;
- Copy of the I-140 Immigrant Petition Approval Notice (Form I-797) for the primary applicant. If you do not have an I-140 approval notice, you may also provide the I-140 Receipt Notice. If the I-140 petition has been filed for you, but you have not yet received your receipt notice, then please provide a copy of your I-140 petition filing.
- Copy of marriage certificate (spouse’s application only);
- Copy of your proof of birth;
- Copy of your most recent I-94 card; and,
- Copy of your I-797 Approval Notices.
III. Form I-765 Application for Employment Authorization:
- Two photographs;
- Form G-28, Notice of Entry of Appearance as Attorney;
- Form I-765, Application for Employment Authorization;
- Copy of biographic page of passport;
- Copy of the I-140 Immigrant Petition Approval Notice (Form I-797) for the primary applicant. If you do not have an I-140 approval notice, you may also provide the I-140 Receipt Notice. If the I-140 petition has been filed for you, but you have not yet received your receipt notice, then please provide a copy of your I-140 petition filing.
- Copy of marriage certificate (spouse’s application only);
- Copy of your proof of birth;
- Copy of your most recent I-94 card; and,
- Copy of your I-797 Approval Notices.
Additional Documents Needed to File (Your outside counsel attorney may require fewer copies)
- Every page of your current and former passports, including pages without any stamps or visas. If a Form I-94 is stapled in your passport, please make sure to copy the passport page underneath the Form I-94.
- THREE (3) copies of your most recent Form I-94 (front and back sides).
- THREE (3) copies of all non-immigrant (such as H-1/H-4 or L-1/L-2) approval notices (Forms I-797) issued in connection with your employment and at any former employers in the U.S.
- THREE (3) copies of Please refer to the attached document entitled “Birth and Marriage Certificate Requirements” to ensure that you have the correct version of the document(s). The birth certificate must include your full name, place and date of birth, and parents’ names, and should be registered close to the time of your birth. Please let us know if you think you may not be able to provide us with birth a certificate meeting these requirements, so that we can discuss alternate forms of documentation.
- THREE (3) copies of your marriage certificate and any dissolution decrees from prior marriages, if applicable.
- THREE (3) copies of any employment authorization document(s) (EAD cards) previously issued to you. You may have received an EAD card if you have ever applied to the immigration service for employment authorization as an F-1 student (optional practical training) or as the spouse of an L-1 or E-3 non-immigrant.
- THREE (3) copies of all I-20 forms issued by your school, covering the entire period you were a student.
- If you and/or any family member were ever in J-1 exchange visitor status, provide THREE (3) copies of all IAP-66 and/or DS-2019 forms issued to you.
Ø Question: I have not kept copies of all of the immigration status documents that Avani indicates I need. What options do I have to obtain these documents?
Answer: If you have previously provided a copy of any of these immigration status documents to your Avani attorney or paralegal, please contact your Avani attorney or paralegal to ask that a copy of the missing documents be forwarded to your outside counsel. If Avani has the documents, they will forward them to outside counsel for you. Please note that you should only make this request if you actually do not have the document. For all other documents, the process will be faster for you if you directly provide the documents to outside counsel.
Ø Question: My documents are in a foreign language, should I have them translated into English?
All documents not in English must be accompanied by a certified English translation. You may translate the documents yourself, but you will need to ask someone (not a family member) who is fluent in both English and the language of the document to certify the accuracy of the translation. The individual certifying the translation should complete and attach the following certification language for each translation:
I, [printed name] , certify that this is an accurate translation of the attached document, and that I am qualified to render this translation, being proficient in both the English and [insert language] languages.
Dated: ___________________ at [city, state].
[signature]_______________________________________
Ø Question: For the translations of foreign documents, the most common way seems to be for a friend to the sign the translation saying it’s the correct translation. However, when I was preparing my AOS paperwork, someone told me that as long as I get it notarized by a notary public, it’ll be fine for me to translate it and sign it myself. Is that correct?
Answer: The best method to submit documents in a language other than English is to provide a copy of your document in the original language, an English translation, and a translation certificate signed by someone who is outside your immediate family who is familiar with both languages. You should not just have your own translation notarized, as this may result in a request for evidence for a translation, and this will delay when your I-485 application will be approved.
Birth Certificates and Marriage Certificates
You will need to provide a photocopy of your birth certificate and a photocopy of the birth certificate of each family member applying with you. Please be advised that each birth certificate must include all of the following information:
- Applicant’s Full Name.
- Full Date of Birth (Month, Day, Year).
- Place of Birth (City, Province/State if applicable, Country).
- Full Name of Mother (BOTH First Name and Last Name – maiden or married name.) Both first name and last name must be spelled out. An initial is not sufficient.
- Full Name of Father (BOTH First Name and Last Name.) Both first name and last name must be spelled out. An initial is not sufficient.
If a birth certificate does not exist or it does not contain all of the required information as stated above, a sworn affidavit executed by both parents (mother and father) may be submitted. See Sample. If one of the parents is not living, then the surviving parent should execute a sworn affidavit. See Sample.
If neither parent is living, then the affidavit can be signed by a close relative at least 10 years older than the applicant who is not party to the application and who has direct knowledge of the birth event and circumstances. See Sample. The affidavit must specify the relationship between the signer and the applicant, how the signer knows the applicant, date and place of the applicant’s birth, the names of both parents, and any other related facts. The affidavit must be signed and notarized. The affidavit can be modified accordingly.
When a birth certificate does not exist, an affidavit of birth should be accompanied by a “Certificate of Non-availability” issued by a competent governmental authority confirming that the birth certificate does not exist. There is no set format for certificates of non-availability, but the document must indicate the reason the record does not exist, and indicate whether similar records for the time and place are available. See Sample.
Note that if the birth certificate or any other document submitted in support of your I-485 application is in a language other than English, you should have a translation of the document. Only a third party (i.e., non-family member) should translate your foreign documents. Any document containing a foreign language submitted to the USCIS must be accompanied by the full English translation, which the translator has certified as complete and accurate, and the translator must certify that s/he is competent to translate from the foreign language into English (see sample certification language below).
Certification of Translation
I, [printed name] , certify that this is an accurate translation of the attached document, and that I am qualified to render this translation, being proficient in both the English and [insert language] languages.
Dated: ___________________ at [city, state]. [signature]_______________________________________
Ø Question: I am putting together my I-485 application, and I am missing the birth certificate. What alternate documentation can I provide? How about if I am missing my marriage certificate?
Answer: The I-485 adjustment of status application requires a copy of your foreign birth certificate or other record of your birth that meets the requirements of secondary evidence. If your spouse is applying with you, you will also need to submit a copy of your marriage certificate. These documents must also be accompanied by a certified English translation, if necessary. Please use your best efforts to obtain these documents. If you are unable to obtain these documents, please obtain affidavits of marriage or birth. To avoid receiving a “Request for Evidence” or “RFE” for these documents, you should continue efforts to obtain the documents as soon as possible.
Ø Question: My marriage certificate was issued by the church where we were married in my home country. As per the law in my home country for Christians, the marriage certificate from the church constitutes a legal record of our marriage, and the country does not require any further registration with the government. Will that certificate do for green card purposes here, or should I get the wedding registered with the government in my home country and get them to issue a marriage certificate? If my current marriage certificate is not sufficient, is there some alternate that does not require registration in my home country? Should I register my marriage here in the U.S.?
Answer: If you travel to your home country before your adjustment of status application is approved, it is a good idea to register your marriage with the government in your home country and obtain a registration certificate so that you can be ready if the USCIS issues a request for evidence (RFE) for further proof of marriage. For country specific guidance on what is an acceptable birth document, you can visit http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3272.html.
Ø Question: The information on my birth certificate is wrong. The local authority in my home country said that they do not provide an affidavit for the birth certificate and that the only solution is for me to fly back to my home country and make appropriate changes to the birth certificate. Is there any other option?
Answer: The U.S. Department of State provides information on the documents that can be obtained from the home country on http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3272.html. The USCIS generally prefers that you provide the documents that are listed on the DOS’ list for each country. However, in this circumstance, it may be acceptable to file with a copy of the available birth certificate and birth affidavits from your parent(s) that provide the correct information.
When the USCIS does not receive the expected documents, the USCIS can either use its discretion to determine that the documents it received are sufficient, or the USCIS can issue a request for evidence (RFE) for the documents it expected to receive. Therefore, we recommend that anyone whose home country has a mechanism to correct errors on a birth certificate use that mechanism as soon as possible to be ready to respond to any potential RFE.
Ø Question: My spouse’s birth certificate has her birth date wrong. Can we just use affidavits to “fix” this problem?
Answer: Again, this depends on whether the home country provides a mechanism to fix the documents in other ways. However, in some cases, it may be possible to file with the incorrect document and affidavits that provide the correct information and obtain the proper documents as soon as possible to be prepared for a RFE.
Ø Question: My birth certificate is missing my full name and I need to get an affidavit for it. Since my parents are here in the U.S., can I get the affidavit done here or does someone in my country of birth need to provide an affidavit? If I have to get the US affidavit, what is the process for it?
Answer: If your parents are in the U.S., they can execute affidavits in the U.S. There is no need for someone in your home country to provide an affidavit. We recommend that you start with our samples provided above. Your parent(s) should then sign the affidavit(s) in front of a notary.
Ø Question: Can I submit a copy of my original birth certificate in my native language along with a “Certification of Translation?” Do you know if this translation and certificate of translation can be on plain paper and anyone can do this or do I need some official translator?
Answer: You should provide a copy of your birth certificate in your native language, an English translation of the birth certificate, and a translation certificate. The translation certificate can be on plain paper and can be completed by anyone outside of your immediate family who can attest to understanding both your native language and English.
Ø Question: Is a photocopy/ fax of a Birth Certificate affidavit sufficient, or do I need to submit the original for the affidavit?
Answer: A copy of the affidavit is sufficient for filing. You should not need to submit the original affidavit. However, it is a good idea to keep the original in case the USCIS unexpectedly issues a Request for Evidence (RFE).
Ø Question: My driver’s license does not reflect my latest address. Do I need to update my address for I-485 documentation purposes?
Answer: There is no I-485 filing requirement that the address on the driver’s license match your home address for your I-485 application. However, most states have a legal requirement that you update your home address with the state’s motor vehicle department, and it is best to comply with every state and federal law. To find out how to change information on your driver’s license in your state, go to http://www.usa.gov/Topics/Motor_Vehicles.shtml and click on the state where you reside.
Immigration Medical Examinations
Each applicant for adjustment of status to a permanent resident must have a physical and mental examination with an authorized physician (designated Civil Surgeon). Examinations by other physicians are not acceptable.
To find a designated Civil Surgeon, you may call the USCIS National Customer Service Center at 1 (800) 375-5283. When you provide your zip code, you will receive the name, address and phone number of the Civil Surgeon nearest to you. Be sure to have a pen or pencil ready to write down the name and telephone number when you call. You can also find a database of designated Civil Surgeons at the USCIS web site: http://uscis.gov/graphics/exec/cs/Index.asp.
Your employer’s health care benefit program may be used to help defray the cost of the immigration medical examination. You may choose any designated Civil Surgeon (see USCIS web site link and phone number above).
The following information may be helpful to you as you select a designated Civil Surgeon. The medical examination is conducted to determine whether there are any disorders for which you should be denied permanent residence. The medical grounds of excludability for immigrant visa applicants are: communicable disease of public health significance; lack of required vaccinations; physical or mental disorders with harmful behavior; and drug abuse/drug addiction.
The physician will determine through examination and tests whether you have a communicable disease of public health significance such as active tuberculosis, HIV infection, sexually transmitted diseases, leprosy, or SARS. The physician will determine through questioning and observing your behavior whether you have had a physical or mental disorder that is likely to pose a threat to the property, safety or welfare of yourself or others. The physician will determine through questions whether you are addicted to or abuse narcotic drugs or alcohol. No drug testing is done — the determination of the doctor is based on your statements. You should bring written documentation, if available, that you are current with vaccine-preventable disease immunization. The doctor will discuss with you immunizations required by the USCIS, which immunizations are medically appropriate based on your age and medical condition, and options for meeting the USCIS vaccination requirements. In general, vaccinations are required for mumps, measles, rubella, polio, tetanus, diphtheria, pertussis, influenza type B, and hepatitis B. All applicants 2 years of age and older are required to have a tuberculin skin test (TST). All applicants 15 years of age and older are required to have serologic (blood) tests for HIV and for syphilis. Applicants under age 15 can be tested for HIV or syphilis if there is reason to suspect the possibility of infection. Civil Surgeons and Panel Physicians are required to provide pre-test counseling to all applicants who take the HIV test. If you are found to have HIV infection, the Civil Surgeon must provide you with post-test counseling.
If you have your immunization records, please take them with you to your medical examination. If you do not have your immunization records, but can get them from your home country, it is a good idea to do so before the medical examination. Please bring your available vaccination records with you to your immigration medical exam so that a determination can be made whether the records satisfy immunization requirements. If you believe that all your vaccinations are current, but you do not have records, you may either get new inoculations or request a blood test, which will show antibodies if you are immune to these diseases. If you prefer, you may visit your own physician for this before you visit the USCIS-approved doctor, since your personal doctor is perhaps more familiar with your medical history.
Please be sure to take your passport with you to your medical examination, as the USCIS-approved doctor needs information from your passport to complete the necessary form (I-693).
Ø Question: I had a BCG (tuberculosis / gruźlica) vaccination in my home country. According to the CDC website, “Diagnosis of Latent Tuberculosis Infection” section my TST (Tuberculin Skin Testing) will be positive and I might be incorrectly diagnosed with latent tuberculosis. What additional tests I would need to do? What is the potential delay/impact for my AOS filing?
Answer: If a person tests positive for TB but has a reaction to the TST of 4 millimeters or less, no further testing is required. If the TST shows more than 4 millimeters of reaction, the doctor will conduct X-rays. If the X-rays are negative (which usually occurs if there was a false positive on the TST), no further action is required. Assuming either the results of the TST or X-rays are negative, there should be no delay to your AOS filing.
Ø Question: How long are the medicals from the civil surgeon valid?
Answer: Medicals are generally valid for one year. However, the USCIS has a long history of extending the validity of medical exams that are filed together with the I-485 application when the processing of the I-485 application takes more than one year. Therefore, we expect that your medical exam will remain valid throughout the duration that your I-485 application is pending if your medical is included with your I-485 application.
Ø Question: I looked at the I-693 form and one of the checkboxes says “Applicant is not current for recommended age-specific immunizations and I have encouraged that appropriate immunizations be obtained.” Does a USCIS approved surgeon merely encourage me to get appropriate immunizations or do I have to take the shots in order to get all the necessary documents?
Answer: In situations where recommendations are made that are age inappropriate, then those specific immunizations are not required.
· Question: Are we supposed to send the Medical Evaluation packet to your Avani attorney? Should I mail the Medical Evaluation to USCIS myself to save time?
Answer: You should mail the medical evaluation packet (sealed) to outside counsel. However, you should also ask the doctor for a copy of your medical exam to also provide to outside counsel so that they can make sure that there will be no medical problems in obtaining an I-485 application approval for you.
Do not mail your medical exam or any other documents directly to USCIS. This can cause confusion and delays in your case. You should send all documents to your outside counsel in the manner that outside counsel describes in their intro e-mails to you.
Family members are eligible to also file their I-485 applications
Your legal spouse and your unmarried children under age 21 are permitted to file I-485 applications at the same time as you. Your dependents can either file at the same time as you or after you as long as your priority date remains current. Your dependents cannot file their I-485s before you file your I-485.
- Please note the USCIS requires that an I-485 applicant be physically present in the U.S. when the I-485 is filed. Neither you nor your dependents who are filing I-485s should be outside of the U.S. on the day that the USCIS receives your I-485 applications.
- Please also note that naming your dependents on your I-140 petition and/or your I-485 application does not automatically include them in your application for a green card. Each of your dependents must file an I-485 application separately that is based on your green card process. Avani also provides assistance on I-485 filings for you and your dependent family members.
Ø What is an Aging Out case for the purpose of Adjustment of Immigration Status?
An Aging Out case is a situation referring to a person’s petition to become a legal permanent resident as a child, and in the time that passes during the processing of the application, the child turns 21, and ages-out. If you believe that your case may have a child that will turn 21 before your Adjustment of Status case is approved, please contact your Avani attorney.
Ø Question: I am getting married in the fall. After my marriage, will my spouse be able to immediately file an I-485 application?
Answer: This depends on whether your priority date is current once your spouse arrives in the U.S. as your dependent. If the priority date is not current, your spouse will not be able to file. If the priority date remains current, your spouse will be able to file.
We recommend that our single employees who are considering marrying a non-U.S. citizen or lawful permanent resident, or who have dependents who are currently abroad, maintain their H-1B or L-1 status so that their dependents can enter the U.S. in H-4 or L-2 status. If priority dates retrogress again before dependant family members file I-485 applications, then the first time that the priority dates become current again, the dependents should file their I-485 applications. They can only maintain H-4 or L-2 status as long as you have H-1B or L-1 status, and once your I-485 application is approved and you are a green card holder, they are no longer H-4s or L-2s. They will need their I-485 applications pending to be able to stay in the U.S., or they will need their own nonimmigrant status (e.g., your spouse will need his/her own H-1B or L-1).
Ø Question: My spouse and I work for two different companies, and we will both now have current priority dates. Should we each file two I-485 applications?
Answer: The USCIS does not like more than one I-485 application to be active. However, from a practical perspective, the USCIS does not seem to require the withdrawal of one of the two employment based green card application sets. However, we do recommend that only one application set pursue the EAD and advanced parole documents because the USCIS does take action on multiple sets of EAD and advanced parole applications.
Ø Question: My children are outside the U.S. for the summer. I can file when they get back, right? If not, will they be able to stay in the U.S.?
Answer: This depends on whether your priority date is current at the time that your children arrive in the U.S. If the priority date is not current when they return, you and/or your children will not be able to file their I-485 applications. If the priority date remains current when your children return to the U.S., your children will be able to file their I-485 applications. We cannot precisely predict how long your priority date will remain current as it could retrogress.
We recommend that our employees who have dependents who are currently abroad maintain their H-1B or L-1 status so that their dependents can enter the U.S. in H-4 or L-2 status. If priority dates have retrogressed, then the first time that the priority dates become current again, the dependents should file their I-485 applications. They can only maintain H-4 or L-2 status as long as you have H-1B or L-1 status, and once your I-485 application is approved and you are a green card holder, they are no longer H-4s or L-2s. They will need their I-485 applications pending to be able to stay in the U.S., or they will need their own nonimmigrant status (e.g., some children become F-1s).
Ø Question: When do I need to be in the U.S. during the I-485 process and when can I and my dependents be out of the country? How soon can I leave the U.S. if I need to travel abroad?
Answer: The answers to these questions depend on where you are in the I-485 process:
- Pre-I-485 filing: You and your dependents do not need to be in the U.S. the entire time that work is being done on the I-485 application, but you will need to be in the U.S. at some point in this time to complete the medical exam, as you must have your exam in the U.S. If you are going to be out of the U.S. while outside counsel is preparing your I-485 application, you will still need to be accessible by e-mail and/or phone to address any additional needed documents or information.
- At the time of the I-485 filing: You and your dependents who are filing I-485 applications MUST BE IN THE U.S. on the day that USCIS receives your I-485 application. Otherwise, USCIS will reject the application, either now or when they realize that you were not here on the day that your I-485 application was filed.
- After the I-485 application is filed: For individuals in H-1B/H-4 or L-1/L-2 status, you and your dependents should remain in the U.S. until the receipt notice for the I-485 application is issued by the USCIS. This may take several weeks or more. Upon issuance of the I-485 filing receipt, you will be able to travel using the original I-485 filing receipt and all documents currently required for travel using a valid visa stamp (example, visa-exempt Canadian nationals). If you and your dependents are in nonimmigrant status other than H-1B/H-4/L-1/L-2 at the time that your I-485s were filed, you will need to remain in the U.S. until the advance parole travel document application is approved, or you will be deemed to have abandoned your I-485 application. This may take several months or more.
Ø Question: Should we expect to get separate fingerprinting notices for each family member? Will we all have different appointment times? Is there any way to schedule the whole family together?
Answer: The USCIS will issue separate fingerprint notices to each member of the family age 14 and over. These may be on the same day but can also be on different dates. However, the officer at the USCIS fingerprinting location has the discretion to permit your family members to take their fingerprints at the same time. All family members should go to the earliest appointment and ask if the officer will permit them all to submit their fingerprints that day. Many officers will allow this in the interest of convenience.
Ø Question: My dependent is finishing a degree and wants to file for OPT while the I-485 application is pending. Can my dependent do this?
Answer: No, your dependent should file the EAD application with her I-485 application. Once your dependent files the I-485 application, s/he is permitted to remain in the U.S. based on the pending I-485 and should obtain the correct work authorization.
Ø Question: What is the condition under which someone’s green card (or some stage of AOS filing) approval can prevent their spouse from entering the US and for how long?
Answer: If your green card is approved before you marry, your spouse has to be sponsored by you for a family-based green card rather than joining you on your employment-based green card process as a dependent. If your spouse does not have independent means to obtain a nonimmigrant visa (eg, H-1B or L-1), you may be separated from your spouse for many years (currently, this is about five years) while you are waiting for the family-based priority date to become current.
Note that your spouse would face extreme challenges in obtaining a nonimmigrant intent visa (e.g, B, F-1, TN, E-3) to come to the U.S. during this period because these visas do not permit the visa applicant to plan to obtain a green card, and your spouse would be married to a U.S. green card holder. Therefore, we recommend that you plan carefully to avoid long-term separation.
Note that spouses of H-1B and L-1 classification holders do not face these challenges, as the H-4 and L-2 dependent classifications do not require a showing of nonimmigrant intent (i.e. no showing that the visa applicant will return to the home country at the end of the authorized stay in the U.S.).
Adjustment of Status vs. Consular Processing
Adjustment of status refers to the procedure for becoming a lawful 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 U.S. consular post abroad. For more information on consular processing, please consult an Avani attorney.
Ø Question: What are your thoughts on Adjustment of Status vs. Consular Processing? I am considering Counselor processing as it is faster but would like to understand the risks involved.
Answer: Avani does not recommend consular processing for the following reasons:
- There is no guarantee that consular processing is faster than adjustment of status processing. However, consular processing is riskier. If you go to the consulate for consular processing, Avani can assist you to appeal any bad decisions the consulate may make to deny you an immigrant visa.
- Consular processing does not provide you with work authorization or permission to remain in the U.S. It does not provide work authorization for your dependents. If you have a consular processing application pending, it does not permit you to remain in the U.S. independent of having nonimmigrant status.
Ability to Work While Adjustment is Pending
If you are inside the U.S. and have filed Form I-485, Application to Register Permanent Residence or Adjust Status, you are eligible to apply for a Work Permit while your case is pending. You should use Form I-765, Application for Employment Authorization to apply for a work permit.
Note: You do not need to apply for a Work Permit once you are granted an immigrant visa or adjust to permanent resident status. As a legal permanent resident, you should receive a permanent resident card that will provide evidence that you have a right to live and work in the U.S. permanently.
EAD cards
Definition
An employment authorization document (“EAD”) provides the foreign national with a pending adjustment of status application authorization to work between the time the adjustment of status application is filed and the time the USCIS approves the application for permanent residency. While the foreign national’s non-immigrant status may still be valid for a period after the adjustment of status is filed, an EAD may be necessary to bridge the gap between the time the non-immigrant status expires and the permanent residency application is approved.
In addition, an EAD is required as proof of employment authorization for some non-immigrant categories, such as F-1 engaged in optional practical training and J-2s approved to work in the United States.
Eligibility
To apply for an EAD, the foreign national must be filing or have filed, an adjustment of status application.
Procedures and Forms
The request for an EAD must be filed on USCIS Form I-765. It can, and should, be filed concurrently with an adjustment of status application.
Ø Question: Is it true that if we don’t get a EAD in 3 months (after filing 140), can individuals get an EAD from the local office? Are EAD applications affected by the latest news? Can I simply upgrade my EAD or I-140 to premium?
Answer: To clarify, the USCIS does not accept EAD applications in conjunction with I-140 petition filings. EAD applications must be filed together with the I-485 application. Premium processing the I-140 petition will not have an impact on how quickly you receive the EAD card. In addition, the USCIS is not accepting premium processing for I-140s in July 2007. EAD and I-485 applications are never eligible for premium processing.
If the EAD application has been pending for 180 days, then you should schedule an Infopass appointment at your local district office to apply for the Interim EAD. Unfortunately, the local office no longer issues the Interim EAD, and it may be 7-10 days before the Interim EAD is delivered to your home from a USCIS Service Center.
Advance Parole
If a foreign national leaves the United States between the time he or she files an adjustment of status application with the USCIS and the date the USCIS approves the application, the application for permanent residence is deemed abandoned. The advance parole document is the exception to this rule, and it allows a foreign national to travel outside of the United States for business or personal reasons while his or her adjustment of status application is pending. The foreign national should not leave the United States while he or she has an adjustment of status application pending unless he or she has an approved advance parole.
Eligibility
The foreign national cannot file for an advance parole unless he or she is also filing, or has already filed, an adjustment of status application. The foreign national must be in the United States at the time of filing the advance parole application.
If the foreign national has been “out of status” in the United States for more than 180 days, he or she should not apply for an advance parole or leave the United States while his or her adjustment of status application is pending. Even though the foreign national may be eligible to adjust status, he or she may be barred from re-entering the United States for a period of three to ten years once he or she leaves the United States, as a result of being “out of status” for more than 180 days.
Procedures and Forms
The advance parole is filed on Form I-131. It must be accompanied by four photographs and a letter explaining the need for travel. It can, and should, be filed concurrently with the adjustment of status application.
The Mechanics of Traveling with a Pending AOS
Several thousand foreign nationals and their dependents recently filed their adjustment of status (AOS) applications with USCIS, and the receipt notices for these applications continue to arrive. We have previously addressed the minimum documents employees must have to travel abroad and return to the U.S. This article walks you through what you need to know about each method of returning to the U.S. Note that even though this article follows a substantial volume of filings, the content of this article applies to all AOS filers, whether your AOS was filed before, after, or during July to August 2007.
Re-Entering the U.S. in H or L Status Using an Original I-485 Receipt Notice When a Visa Is Required
Company employees who are currently holding H or L status can travel outside the U.S. as long as their status is current, and they are returning to the U.S. to work with the same employer.
To minimize the risks of facing problems at the port of entry, we recommend that you have the following documents with you before traveling abroad, as these are the documents you should have at the port of entry:
- Your H/L approval notice;
- Your passport, valid at least 6 months beyond the expiration of your H/L status;
- An unexpired H/L visa in your passport; and
- An employment verification letter from your employer (Please request at least 3 weeks prior to your travel.).
If you must obtain an H or L visa while abroad, then you will need to follow standard procedures to obtain the visa. Please click here for information on our website regarding this topic.
If you need to obtain a new visa, ideally, you should wait to travel until you have your advance parole document so that you can still re-enter the U.S. if you have any unexpected problem in obtaining your visa. However, at the port of entry, you should have your advance parole in a carry on bag and should not show it to the port of entry officer unless there is any problem entering the U.S. on the H or L. Otherwise, as the port of entry officer may decide to admit you on advance parole if you give the officer a choice.
Re-entering the U.S. with the Original I-485 Filing Receipt When No H or L Visa Is Required
There are two groups of H and L status holders who can travel abroad without a visa: (1) Canadians and (2) citizens of most countries who are traveling to Canada or Mexico for less than 30 days.
Canadians only need their H or L approval notice, their passport valid for at least 6 months beyond the validity date of the H-1B or L status, and an employment verification letter from your employer to travel. Note that Canadians in a status other than H or L need their advance parole documents and should not assume they can travel abroad before the advance parole is approved and in hand.
For non-Canadians, the “30-day rule” allows for short trips (30 days or less) to contiguous territories (i.e., Canada or Mexico). You may enter the U.S. using an expired nonimmigrant U.S. visa (even a visa in another classification than H or L) as long as the following requirements are met:
- You have maintained and intend upon re-entry to resume valid nonimmigrant (temporary) status;
- You are applying for readmission within the authorized period of initial admission or extension of stay;
- You have not applied for a new visa stamp during the trip abroad; and
- You are not a national of a country identified by the Department of State as supporting terrorism.
If you have an expired visa stamp, you can use that stamp along with your valid I-94 card for re-entry back to the U.S. for a short trip to Canada or Mexico. Individuals who use the 30 day rule to travel should have the following documentation with them before they re-enter the US:
- Your Original H-1B/L-1 approval notice (Form I-797);
- Your passport, valid at least 6 months beyond the expiration of your H-1B/L-1 status;
- Your valid unexpired I-94 card;
- Copy of your H or L petition and supporting documents; and
- Proof of employment. Your assigned U.S. Team paralegal can prepare an employment verification letter for you to take with you on your trip. Please contact your Avani attorney and paralegal at least 3 weeks prior to your trip. You should also take along all of your documents to ensure a smooth re-entry into the United States. Your Avani attorney can assist you with putting this document packet together.
*Note that you need to check Canadian and Mexican visa requirements before you attempt to enter either country.
Traveling on Advance Parole Documents
The AOS applications filed for Avani clients and their dependents generally include an application for employment authorization and an application for an advance parole document. When the advance parole document is received, individuals not in H or L status will be able to travel without running the potential risk of being deemed to have abandoned their AOS applications, and individuals in H or L status will have the choice of how they wish to travel abroad (i.e. their H or L status or with advance parole).
When you travel on advance parole, you should have your advance parole document(s) and your passport, valid at least 6 months beyond your desired U.S. entry date, with you. When the advance parole is approved, you will receive 2 to 3 copies of the advance parole document. The first time you travel with your advanced parole, the port of entry (POE) immigration inspector may take one of your copies of your advance parole document when you re-enter. However, the POE officer generally will not take the last copy of your advance parole document. Once you only have one copy of your advance parole left, you will need to inform the POE officer that you are using the last copy of your advance parole document. If the immigration inspector does take your last advance parole document, then contact your Avani attorney so that we can apply for a new advance parole document for you.
If you use the advance parole documents to travel, you likely will be sent to secondary inspection at the port of entry. This process usually delays departure from the port of entry by at least 30 minutes, so if someone is picking you up, you will want to add some time to your estimated departure from the airport or other port of entry. It is legally permissible for a company employee to travel via H or L classification while their dependent travels via advance parole. However, the dependent will likely go through secondary inspection while the employee likely will not. Be prepared to be separated at the airport if one is traveling via H or L and the other is traveling on advance parole. Plan where you will reunite in the airport after the secondary inspection and which of you will take various carry-on luggage with them.
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