Key Permanent Visa Concepts: Adjustment of Status

Adjustment of Status (Form I-485)

Once an I-140 petition is approved, the person’s priority date is current, he/she is legally present in the United States, and the person wishes to adjust his or her status from nonimmigrant to immigrant while in the United States, the person files a Form I-485 Adjustment of Status application with the USCIS. All family members intending to immigrate with the principal applicant (i.e. spouse and minor unmarried children under the age of 21 years) should file an adjustment of status application concurrent with the principal applicant. All applicants must submit medical examinations with the I-485. Further, all applicants over the age of 14 must undergo fingerprinting and a FBI background check.

Please note the decision to process this final step is usually determined when the I-140 petition is filed. If a person requests Consular Processing in the I-140 and later changes his/her mind and wishes to convert the case to Adjustment of Status, it is easy to change the process. The person submits a Form I-485 with supporting evidence with the USCIS.

However, if a person requests Adjustment of Status in the I-140 and later changes his/her mind to Consular Processing, it is more difficult to change the process. It will take several months to request the USCIS to transfer the file for Consular Processing.

The “Combined Processing” Option and Availability of Immigrant Visa

If a person’s priority date is current, a Form I-140 and a Form I-485 may be filed concurrently. An individual must review the current issue of the U.S. Department of State’s (DOS) Visa Bulletin to determine if he/she is eligible for combined processing.

Travel and Employment During the Adjustment of Status Process

When an adjustment of status application is filed, the principal applicant and each family member may apply for an Employment Authorization Card (EAD), which authorizes employment in the U.S., and an Advance Parole (AP), which authorized international travel and re-entry into the U.S.

As long as the adjustment of status application is filed prior to the expiration of a person’s nonimmigrant status, the person is deemed “in-status” and can remain in the United States after expiration of the nonimmigrant status set forth on the person’s Form I-94, Arrival/Departure Card. In order to continue working without any gap in employment, a person should apply for an EAD the same time the I-485 is filed.

The AP is a critical document if a person does not possess a valid H-1 or L-1 visa because, after the submission of an I-485, neither the principal applicant nor his/her family members may leave the United States without first obtaining the AP. If such a person departs the U.S. without first obtaining an AP, that individual may not be readmitted into the United States.

If the principal applicant has a valid H-1 or L-1 visa, he or she may continue to work and travel utilizing the H-1 or L-1 visa as long as his/her status remains valid and is returning to the U.S. to continue employment with the same petitioning company that sponsored the H-1 or L-1 status. H-4 or L-2 visa holders may continue to travel and legally remain in the United States.

All nonimmigrant visa classifications, other than H-1 or L-1, require issuance of an AP to return to the U.S. after international travel while an Adjustment of Status application is pending.

Delays Due to Lengthy FBI Background Checks

When the USCIS processes the I-485, all applicants under the age of 14 years must undergo a FBI background check. For some individuals, the FBI background check is completed very quickly, sometimes in a few months. For others, the process can take longer, sometimes several months. The USCIS issues a Biometrics Appointment Notice to each family member requiring an FBI background check. Each person is directed to go to an Application Support Center (ASC) and have his/her fingerprints scanned for the check.

Delays Due to Personal Interview at USCIS District Office

In addition, some cases are sent to a local USCIS District Office where an applicant must attend a personal interview. A case is sent to a District Office when an examiner believes there is something unusual about the case and a personal interview should be conducted to deal with the peculiarity.

Approval of the I-485

When the USCIS approves the I-485, a Form I-797 Approval Notice is issued. Upon receipt of the Approval Notice, the applicant is either requested to appear at an Application Support Center (ASC) to provide biometrics for production of the actual Form I-551, Alien Registration Receipt Card, commonly known as a “Green Card”, or the actual card is mailed directly to the applicant.

Change of Employers During the Adjustment of Status Phase of the Application

With the passage of the American Competitiveness in the Twenty First-Century Act in the fall of 2000 a dramatic change occurred. Under certain circumstances, an employee is able to change sponsors for his/her green card and immigrate through a new employer

.A person must generally meet the following three conditions to qualify under this rule:

1. The Form I-140 petition must be approved by the USCIS
2. 180 calendar days must have passed since filing of the Form I-485, Adjustment of Status application
3. The new job with the new company is in the same or a similar occupational classification as the one for which the I-140 petition was filed

The USCIS has very specific rules which govern this area. It is highly recommended a person seek counsel with an immigration attorney prior to changing employers in this situation.