Adjustment of Status

The adjustment of status application process basically adjusts the status of a foreign national and any eligible family members (spouse and minor children under the age of 21) from nonimmigrant to permanent resident status.  It refers to the actual application for a “green card.”  This also means that applicants must be in the United State when applying for adjustment of status.

Individuals can file an adjustment of status application based on immigrant petition, whether based on permanent employment or family sponsorship, provided that an immigrant visa number is immediately available — such as in the case of an immediate relative immigrant visa petition — or the priority date in the immigrant visa preference category is current. Unfortunately, the most commonly used employment-based categories (EB-2 and EB-3) and all of family-sponsored preference categories are backlogged. This means that intending immigrants who fall under any of these categories must first file the appropriate I-130 immigrant petition for alien relative or I-140 immigrant petition for alien worker and then wait for their priority date to become current before they can file their adjustment of status application. The typical waiting period could range from 1 year to approximately 15 years, if not more. It is also important to note that the filing of an immigrant petition and it’s subsequent approval does not grant lawful status or employment authorization to its intended beneficiaries, unless they are maintaining a separate valid nonimmigrant status, or have a pending adjustment of status application and an Employment Authorization Document (EAD).

Form I-485 Application to Register Permanent Residence or Adjust Status is filed by eligible applicants for adjustment of status. In cases where there are immediately available immigrant visas (immediate relative petitions) or the preference category is current (EB-1, EB-4, and EB-5), the appropriate immigrant petition can be filed concurrently with the I-485 adjustment of status application. The advantage of doing so is that spouses and family members may immediately apply for an EAD, which allows unrestricted employment, and obtain Social Security numbers. However, the downside is that if the immigrant petition is denied, the adjustment of status application (for the principal applicant and accompanying family members) will also be denied. This is the reason why some applicants, particularly those in the EB-1 categories, would prefer to file the I-140 immigrant visa petition first.  Once it is approved, they then file the I-485 application(s) for themselves and for their qualifying dependent family member(s).

As part of the adjustment of status application, applicants may also apply for Form I-765 Application for Employment Authorization and Form I-131 Application for Travel document. In fact, these two ancillary applications are included in the adjustment of status filing fee. It usually takes the U.S. Citizenship and Immigration Services (USCIS) approximately 2-3 months to process these applications. Once approved, applicants who apply for both will receive a “combo card,” which serves as both EAD and travel document or Advance Parole (AP). Otherwise, each application will be issued separately.  Combo cards are generally issued with one-year validity period.  They allow unrestricted travel and employment, and may be renewed as long as the adjustment of status application is pending. However, in case of visa retrogression, pending adjustment of status applicants may be granted a combo card that is valid for two years.

Once the adjustment of status application is filed, travel is not permitted outside of the United States unless the applicant has a valid travel document, such as an H-1B, H-4, L-1 or L-2 visa, or an Advance Parole document. A departure without the appropriate travel document will result in the abandonment of the I-485 application.

 

AC21 and Green Card Portability

In general, an I-140 immigrant visa petition is valid only between the sponsoring employer (the petitioner) and the foreign national, who is also the petition beneficiary. This means that if the foreign national leaves the sponsoring employer before the green card application is completed, the new employer (if there is one) must restart the green card application process from the PERM labor certification application (in most cases) to I-140 immigrant visa petition, and I-485 adjustment of status application.

The American Competitiveness in the Twenty-first Century Act of 2000(AC21), provides job flexibility for long-delayed I-485 adjustment of status applicants. Under AC21, an I-140 immigrant visa petition shall remain valid when the beneficiary changes jobs, if:

  • The I-140 immigrant visa petition has been approved;
  • An I-485 adjustment of status application, based on the I-140 immigrant visa petition, has been filed and remained pending for at least 180 days; and,
  • The new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.
Therefore, foreign nationals who meet these criteria may port their I-140 immigrant visa petition to a new employer without requiring the latter to start a new process or file a new petition.

In case where the I-140 immigrant visa petition remains unapproved, and the I-485 adjustment of status application has been pending for at least 180 days, the foreign national may still be eligible for I-140 portability provided that the I-140 petition was approvable at the time of filing, or would have been approvable had it been adjudicated within 180 days.

On the other hand, if the I-485 adjustment of status application has been pending for less than 180 days, USCIS has the discretion to either approve or deny the application. USCIS will generally look to see if there was a bona fide job offer from the sponsoring employer and intent on the part of the foreign national to remain in the offered job upon adjustment of status.

 

Immigrant Visa Processing (IVP)

Most foreign nationals who are eligible to apply for adjustment of status may also choose to attend a green card interview at the U.S. Embassy in their home country instead of filing an I-485 application. This is commonly referred to as consular processing or immigrant visa processing (IVP) abroad. Once the immigrant petition (e.g. I-140 or I-130) is approved, USCIS forwards the file to the National Visa Center (NVC), which coordinates the collection of documents and schedules an in-person interview at the U.S. embassy. Immigrant visa interviews are generally scheduled approximately 4-6 months after the approval of the immigrant petition as long as immigrant visas are available.  However, if the preference category for the immigrant visa petition is not current, NVC will hold the process and resume only once the applicant’s priority date becomes current.

As mentioned above, the approval of immigrant visa petition does not grant the applicant any authorization to legally stay and work in the United States.  Therefore, IVP applicants who are currently in the country must continue to maintain their underlying nonimmigrant status (e.g., H-1B/H-4 or O-1/O-3 or F-1/F-2) during their stay in the United States.

After the immigrant visa interview, a temporary immigrant visa will be issued and stamped in the applicant’s passport.  The visa is typically valid for six months, within which the applicant must enter the United States as permanent resident.