| 1. | What is Adjustment of Status? |
| Adjustment of Status is the last step in the Green Card process. Upon approval of either an I-140 employment based Immigrant Petition or I-130 relative Immigrant Petition by United States Citizenship and Immigration Services (USCIS), the applicant and any qualified derivative dependents must make a final application in order to obtain permanent residency.
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| 2. | What is involved in the Adjustment of Status process? |
| To apply for Adjustment of Status, the foreign national must complete an application for him/herself and for each member of his/her immediate family that is seeking to adjust status to that of permanent resident. The Adjustment of Status must be filed with the USCIS Service Center that has jurisdiction over the place of intended employment for an employment-based case and at the USCIS Chicago lockbox office for a family-based case.
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| 3. | What is a "priority date"? |
| The United States uses a quota system under which immigrant visas for both employment based and family based petitions are issued. Visas are issued based on the first date the employer or foreign national submits an application to the United States government. The date this application is received serves as an applicant's "priority date". Individuals seeking to apply for permanent residency must have a "current" priority date, or establish that an Immigrant Visa is immediately available to them. In the case of an immediate relative of a United States citizen, an Immigrant Visa is always considered immediately available upon approval of the I-130.
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| 4. | What if I am not physically present in the United States? |
| Foreign nationals who are not eligible for "Adjustment of Status" due to physical presence outside of the United States, must complete the permanent resident process by filing an application for an Immigrant Visa at a United States Consulate. This is also referred to as "Consular Processing."
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| 5. | Who is eligible for Adjustment of Status? |
| Foreign national beneficiaries of approved Immigrant Petitions who are physically present in the United States and have remained in valid legal status since their entry are eligible to seek their "green card" without having to leave the United States through a process called "Adjustment of Status". For individuals seeking to immigrate as an immediate relative of a United States citizen, periods out of status may be forgiven. An immediate relative is a spouse, parent, or unmarried child under age of 21.
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| 6. | What are the requirements for Adjustment of Status? |
| To qualify for Adjustment of Status, a foreign national must meet certain requirements including the following: He/she 1) must not have entered the country illegally. 2) must have been "admitted" to the United States. 3) must not have been admitted as a "crewman," in transit through the United States from another country, or as an Exchange Visitor who is subject to the two-year foreign resident requirement if he/she has not fulfilled the requirement or received a waiver to the foreign resident requirement; 4) must not have engaged in unauthorized employment while in the United States (An exception to this rule can be made in the case of an immediate relative of a United States citizen); 5) must be eligible for immigration, e.g. he/she must be the spouse, child, parent, or sibling of a United States citizen, the spouse or unmarried child of a lawful permanent resident of the United States, or eligible under one of the categories for employment-based immigration; and an Immigrant Visa must be immediately available to the foreign national, i.e. his/her priority date must be current.
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| 7. | What are the grounds that render an applicant inadmissible as a Permanent Resident? |
| The foreign national must be admissible to the United States as a permanent resident. There are nine major categories under which foreign nationals can be found excludable. These include: 1) Health related grounds; 2) Criminal and related grounds; 3) Security or related grounds; 4) Public Charge; 5) Labor Certification; 6) Illegal Entrants and Immigration Violators; 7) Documentation Requirements; and 8) Ineligible for Citizenship.
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| 8. | Are there waivers available? |
| There are waivers available for specific grounds of exclusion. If an applicant believes that one of the grounds of exclusion applies to him/her, he/she should consult an attorney before applying for Adjustment of Status.
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| 9. | What is 245(i)? |
| 245(i) allows individuals who are ineligible for Adjustment of Status due to status or entry violations, such as a lapse in nonimmigrant status, unauthorized employment, etc. to remain eligible for Adjustment of Status as long as they have a priority date of 4/30/01 or earlier, were present in the United States on December 20, 2000, and they pay a $1000.00 penalty fee.
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| 10. | What are the advantages to Adjustment of Status? |
| There are three main advantages to utilizing the Adjustment of Status procedure instead of Consular Processing. The first advantage is that the foreign national saves the cost and inconvenience of returning to the country of last residence for him/herself and his/her family members. Secondly, the applicants of Adjustment of Status are eligible for employment authorization during the pendancy of the application. The third advantage is that the foreign national will have the right to appeal a denial of the petition, a right that is not available through Consular Processing.
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| 11. | What are the advantages to Immigrant Visa processing abroad? |
| The primary advantage to applying for an immigrant visa at a United States Consulate is speed. In certain cases, applicants may find that applying for an immigrant visa at a United States Consulate may be completed in less time than applying for Adjustment of Status. In making this decision, applicants must consider a wide variety of factors, including current USCIS processing times for Adjustment of Status, the existing volume of cases pending at the specified United States Consulate, current policies and procedures in place at the designated Consulate, whether there may be any issues or factors that could render the applicant inadmissible, and the current political climate at the country where the United States Consulate is located.
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| 12. | What is the process should I seek to apply for an Immigrant Visa at a United States Consulate? |
| When the USCIS approves an I-130 Immediate Relative Petition or I-140 Immigrant Petition for Alien Worker, a copy of the approval notice and the visa petition is sent to the National Visa Center (NVC), which in turn notifies the United States Consulate designated on the petition. The petition is reviewed to determine whether the applicant's case falls within the designated Consulate's jurisdiction, that the applicant is indeed eligible for immigration, and whether an immigrant visa is immediately available to the foreign national based on his/her priority date.
If a visa is not immediately available, the applicant will be notified that the immigrant petition approval notice has been received, and that the consular visa process will continue when a visa is available.
If a visa is immediately available based on the foreign national's priority date, the applicant will receive a package containing the necessary application forms and instructions to apply for an immigrant visa. The forms and materials are required to obtain current information about the applicant and to instruct the applicant on assembling the necessary documents needed to complete the visa processing application. These documents include passports, certified copies of marriage certificates, birth or adoption certificates, divorce or death certificates of former spouses, court and prison records, police certificates, military records, photographs, and English translations of all foreign language documents. The applicant must complete the necessary forms and return all the necessary documents to the National Visa Center.
After the National Visa Center receives the completed forms and supporting documents, the applicant will receive a second package. This packet notifies him/her of the date and time of his/her visa interview appointment, and contains forms which must be completed and brought to the interview.
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| 13. | Is a medical exam necessary for Consular Processing? What is involved in the medical exam? |
| The foreign national and all accompanying family members will be required to have a medical examination from a government-designated physician abroad prior to the visa interview. Along with the interview notice, the applicant will receive a list containing the names, addresses, and telephone numbers of designated physicians near the United States Consulate, information about the medical appointment, and medical history forms. The applicant must make arrangements to complete the medical examination prior to the visa interview. The medical examination consists of a mental and physical evaluation, vaccination screening, chest X-ray, blood (HIV) test, and a tuberculin test. The results of the tests will be given to the foreign national in a sealed envelope, which he/she must present (unopened) to the Consular Officer at the visa appointment.
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| 14. | What is involved in the Consular Processing interview? |
| At the Immigrant Visa interview, the foreign national will be questioned regarding the information that was submitted by him/her to the Consulate, and the documents of the foreign national and his/her family members will be examined. If everything is in order, the Consular Officer will issue the visa, usually on the same day.
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| 15. | Is a medical exam necessary for Adjustment of Status? |
| The medical examination and tests must be completed prior to the interview. The foreign national must contact one of the physicians on the approved list of designated physicians to set an appointment for the medical examination for him/herself and each family member. The medical examination consists of a chest X-ray, blood (HIV) test, and a tuberculin test. The results of the tests will be given to the foreign national in a sealed envelope, which will be submitted (unopened) to the USCIS.
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| 16. | My Adjustment of Status application has been filed. What are the next steps? |
| You will receive a receipt notice for your I-485 application for permanent residence after about four weeks. This can take more or less time depending on the work load and staff allocation at the USCIS.
You will also receive receipt notices for your applications for Advance Parole and an EAD if you applied for those. Sometimes receipt notices for one family member will come before another even if they were all filed together. In that case we will wait for a week or two. If a receipt is missing for a longer period of time, an inquiry will be sent.
You will also receive a biometrics (fingerprint) appointment for every applicant age 14 and over. Derivatives under age 14 will also receive notices and must appear at the appointment, but they will not be fingerprinted. The United States Citizenship & Immigration Services (USCIS) uses a National Scheduler system to schedule biometrics appointments, and it is possible that not all family members will be scheduled at the same time. Each family member must have an original biometrics notice to attend the appointment.
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| 17. | When will I receive my Employment Authorization Document (EAD)? |
| If approved, you should receive your EAD within 90 days of filing, presuming that there are no delays in obtaining your biometrics. If you do not receive your EAD within 90 days, you may be able to apply for an interim EAD. Please contact your attorney or paralegal for more information on interim EADs.
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| 18. | When will I receive my Advance Parole document? |
| Processing dates are currently about three to four months, but may vary. Please follow the provided link to check processing times for the service center where your application was filed:
https://egov.uscis.gov/cris/jsps/ptimes.jsp
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| 19. | Can I reschedule my biometrics appointment? |
| If you or a family member is unavailable on the date of the fingerprint appointment you must reschedule in writing. Please follow the rescheduling instructions as listed on the notice. We request that you notify our office that you will be rescheduling and send us a copy of your rescheduling request. Rescheduling a biometrics appointment may result in a delay in the issuance of your Employment Authorization Document. Please contact your paralegal or attorney for rescheduling appointments in Seattle, Washington.
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| 20. | Is an interview required for Adjustment of Status? |
| Interviews are generally waived for employment-based cases but are required for most non-employment based Adjustment of Status applications.
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| 21. | What takes place at the USCIS Adjustment of Status interview? |
| At the Adjustment Interview, the USCIS Officer will place the applicant(s) under oath, and review the Form I-485 and Form G-325A for accuracy. The Officer may ask the applicant(s) questions pertaining to the basis for permanent residency, and/or any possible reasons for exclusion. Assuming that everything is in order and fingerprints have cleared, at the conclusion of the interview, the Officer will approve the application for permanent residence.
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| 22. | What should I bring to my USCIS Adjustment of Status interview? |
| On the day of the interview, the applicant should appear at the USCIS office with the following: 1) His/her family members who are also seeking to adjust status (if any); 2) His/her passport; 3) His/her I-94 Departure Record; 4) All original documents of those that were submitted with Form I-485 "Application for Permanent Residence"; 5) An up-dated job offer letter if the permanent resident application is based upon an employment- based petition; 6) Evidence of the relationship of a marriage-based case; and 7) The Appointment Notice.
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| 23. | Can I travel during the pendancy of the Adjustment of Status? |
| Generally, yes. Please note that an applicant and all derivatives must be in the United States at the time of filing for Adjustment of Status. If an applicant wishes to travel during the pendancy of the Adjustment of Status, he/she must request travel authorization (Advance Parole). Under the current regulations, applicants with valid H or L visas are also authorized to travel in and out of the United States during the pendancy of the Adjustment of Status.
Please note, however, that travel outside of the United States may trigger the three and ten year bar to admission under section 212(a)(9)(B)(i)of the Act for Adjustment applicants, but not registry applicants. This ground of inadmissibility is triggered if you were unlawfully present in the United States (i.e., you remained in the United States beyond the period of authorized stay) for more than 180 days before you applied for Adjustment of Status and you traveled outside of the United States while your Adjustment of Status application was pending.
Check with your attorney before traveling outside the United States.
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| 24. | Can I travel during the pendancy of the Advance Parole renewal? |
| You must be in the United States when you file for a new Advance Parole. If you leave the United States while using your current Advance Parole, you must reenter the United States using the same document, before it expires. You may not, for instance, apply for a new Advance Parole, then leave the United States using your current unexpired Advance Parole and stay abroad past its validity date. Because you would not be able to reenter using your new Advance Parole once it is approved. In other words, you must reenter the United States using the same document you used when leaving. A new, approved Advance Parole document may not be mailed to you abroad. Therefore we recommend that you do not travel near the expiration date of your Advance Parole document. It is important to plan your travels accordingly. You can request advance parole 120 days in advance of the expiration of your current Advance Parole document.
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| 25. | What if I am laid off before my application for Adjustment of Status is approved? |
| If your timely filed Adjustment of Status application, Form I-485, remains unadjudicated for 180 days, you are "portable," meaning you are able to accept a similar position with another employer without that employer having to file for a new Form I-140 on your behalf. However, in order to port, your new job must be in the same or similar occupational classification and have same or similar job duties. Always verify with your new employer's immigration attorney that you would qualify to port.
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| 26. | Should I continue to renew my H-1B even if I have applied for an EAD and Advance Parole? |
| Although you can begin work using your Employment Authorization Document (EAD) once it is approved and you can travel using your Advance Parole document, once you have received it, the Bae Law Group recommends that you continue to renew your nonimmigrant visas as long as you are eligible to do so, as they generally provide a more stable work authorization. However, be aware that in order to continue to travel in H-1B status, you must also continue to obtain your visas at a United States Consulate (except Canadians).
Please note, however, that travel outside of the United States may trigger the three and ten year bar to admission under section 212(a)(9)(B)(i)of the Act for Adjustment applicants, but not registry applicants. This ground of inadmissibility is triggered if you were unlawfully present in the United States (i.e., you remained in the United States beyond the period of authorized stay) for more than 180 days before you applied for Adjustment of Status and you travel outside of the United States while your Adjustment of Status application is pending.
Check with your attorney before traveling outside the United States.
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| 27. | Does obtaining an Employment Authorization Document (EAD) violate my H-1B, H-4 or L status? |
| Generally, no, unless the primary applicant uses an EAD to leave the H-1B employer and to work for a separate employer. Please note that if a derivative spouse or child works on the basis of an EAD while in H-4 status, that H-4 status is violated and they will require an Advance Parole document to travel.
Check with your attorney before traveling outside the United States.
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| 28. | Do I lose my H-1B, H-4 or L status if I enter the country on Advance Parole? |
| No. Although you are then not technically in the country on H/L status, where an underlying H-1B, H-4, or L petition is valid at the time of filing, you can extend your H-1B, H-4, or L status. If the extension was granted, the grant of Advance Parole would be terminated and you would be admitted in the relevant nonimmigrant classification, H-1B, H-4, or L. Please note that if you enter the United States under Advance Parole, you may be requested to verify that you hold a valid Employment Authorization Document (EAD) card as work authorization.
Check with your attorney before traveling outside the United States.
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| 29. | I have maintained my nonimmigrant status; do the Advance Parole travel restrictions apply to me? |
| If you are maintaining nonimmigrant status allowing dual intent (such as H-1B, H-4, or L-1, etc.) and have an I-485 Adjustment of Status pending, you may file for Advance Parole renewal while in the United States, but you can leave before it is approved and return using your valid nonimmigrant visa (listed above).
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| 30. | I am Canadian, do I need to obtain a visa in order to travel in H-1B or H-4 status? |
| No. Canadian citizens do not require visas to enter the United States.
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