 
 
|
|
Posted Dec 20, 2005 | updated Feb 07, 2008
The following
questions and answers are based on those frequently posed to the attorneys
at the Murthy Law Firm. As a courtesy to our clients and
the immigrant community, we generously share this useful information.
Question
1. When can I file an
I-485 application for adjustment of status to permanent residence? Top
©MurthyDotCom
A person
seeking to file an I-485 application for adjustment of status must be in
the United States at the time of filing. Among other classes of
eligibility, an I-485 also may be filed by beneficiaries of an I-130
Petition for Alien Relative, an I-140 Petition for Alien Worker, an
I-360 Petition for Special Immigrant, or by a person who has been
granted asylum. Certain individuals may be ineligible to file the I-485
application to adjust status. Therefore, it is best to discuss with a
qualified immigration attorney whether one qualifies for adjustment of
status.
©MurthyDotCom
In a family-based preference case, the applicant must wait until the
priority date (the date the I-130 was filed) is current. An exception to
this is the I-130 Petition that is filed for an immediate relative of a
U.S. citizen (i.e. spouse, parent, unmarried child under 21). In the
case of an immediate relative of a U.S. citizen, the I-130 petition and
I-485 application may be filed together.
©MurthyDotCom
In an I-140 employment-based case, the applicant must wait until the
priority date is current to file the I-485. The priority date of an
I-140 petition is the date the labor certification was filed, or the
date the I-140 petition was filed, if no labor certification was needed.
If the employment-based priority date is current, an I-485 application
may be filed concurrently with an I-140.
©MurthyDotCom
Beneficiaries of an I-360 petition must wait until the I-360 is approved
and the priority date (the date the I-360 was filed) is current before
filing an I-485.
©MurthyDotCom
A person approved for asylum may file the I-485 one year after the
asylum was granted.
©MurthyDotCom
[Note:
The most up-to-date Visa Bulletin
from the U.S. Department of State is always available on MurthyDotCom.]
Question
2.
When can I
take the medical exam that is required to get a green card? Top
©MurthyDotCom
For the
I-485, the medical exam information is submitted on Form I-693 and
generally must be less than a year old at the time of filing the I-485.
In consular processing cases, the medical exam must be completed in the
country where the consular interview will take place within a timeframe
provided by the consulate.
©MurthyDotCom
For I-485 applicants, the medical exam must be conducted by a
USCIS-approved civil surgeon. USCIS provides a list of approved
civil surgeons online.
©MurthyDotCom
The U.S. consulate abroad will provide an applicant with a list of
approved panel physicians in the country where the consular interview
will take place.
Question
3.
Do I need an
Employment Authorization Document (EAD) while my I-485 is pending? Top
©MurthyDotCom
One who wishes to
work legally in the United States must have valid work authorization. A
person who files an I-485 generally may obtain an EAD, which confers
work authorization. Such an individual must have the valid EAD in hand
in order to use it to work legally. One who is in H1B or L-1 status may
choose to use the H1B or L-1 to work in the U.S. in lieu of the EAD,
even if s/he has a pending I-485.
©MurthyDotCom
It is best to discuss with a qualified attorney which form of work
authorization would be best suited to one’s particular circumstances.
Question
4. Do I need Advance
Parole while my I-485 is pending?
Top
©MurthyDotCom
One who
wishes to travel abroad while an I-485 is pending must have an Advance
Parole. If that person holds H1B, H-4, L-1, or L-2 status, s/he may
choose to reenter the U.S. using a valid visa for his/her status rather
than using the Advance Parole. Not all persons who file the I-485 should
apply for Advance Parole or use it to travel abroad, even if it has been
issued. One who has been unlawfully present for 180 days or more prior
to filing the I-485 should not travel outside the U.S. while the I-485
is pending or s/he will be subject to the 3- or 10-year bar on reentry
to the U.S.
Question
5.
My child was
born in the U.S. Do I need to apply for a green card for this child? Top
©MurthyDotCom
In
most cases, a child born in the United States is automatically a U.S.
citizen. A U.S. citizen child must be listed as a dependent but does not
need to file an application or petition with the USCIS in order to
obtain an immigration benefit. It is advisable for permanent resident or
green card applicants to take copies of their children's birth
certificates to USCIS or consular interviews to prove that the children
are U.S. citizens.
Question 6. My child was born outside the U.S. Does this child
need a separate green card application?
Top
A child (i.e. under the age of 21 and unmarried) who was born outside
the U.S. is considered a derivative of the parent’s immigrant visa
petition. Nevertheless, the child must file his or her own I-485
application to adjust status based on the parent’s immigrant petition. A
parent may sign the necessary forms for a child who is under the age of
14 years.
Immediate relatives of U.S. citizens (i.e. spouse, parent, unmarried
child under 21) cannot have derivative beneficiaries. The U.S. citizen
must file a separate I-130 petition for each immediate relative.
Question
7.
I do not have
a birth certificate. What can I provide instead? Top
©MurthyDotCom
If an applicant does
not have a birth certificate, then s/he should provide two affidavits
affirming the applicant’s date of birth, place of birth, and parent’s
name. The affidavits should be based on personal knowledge from persons
who were present at the time of the birth and who were at least ten
years old at the time of the birth. In addition the applicant should
provide an official statement from the local government body affirming
that the birth was not registered.
©MurthyDotCom
The best evidence for one who was born in India, whose birth was not
registered is a certificate of nonavailability from the local
government, like a Municipality or Panchayat, and two affidavits.
©MurthyDotCom
While secondary evidence (e.g. school leaving certificates, baptismal
records, medical records, etc.) should also be submitted, either a birth
certificate or a certificate of nonavailability plus two affidavits are
required. It is quite risky to proceed with secondary evidence alone.
Question
8.
There are errors
on my birth certificate and it is incomplete. Do I need to provide anything else? Top
©MurthyDotCom
If
possible, a birth certificate with errors should be corrected by the
local government office that issued it. If this is not possible, an
applicant with problems on a birth certificate, such as an incomplete,
missing, or misspelled name; the wrong birth date; or registration more
than a year after the birth, should obtain two affidavits of birth from
persons who were present at the time of the individual's birth and who
were at least ten years old at the time of that birth.
Question
9.
Can I keep my
H1B or L-1 while I have an I-485 application pending? Top
©MurthyDotCom
Generally, if an I-485 applicant remains employed with the H1B or L-1
employer in the same position described in the H1B or L-1 petition, the
person may maintain H1B or L-1 status while an I-485 is pending. One who
keeps the H1B or L-1 job, but takes a second job with another company
and uses the EAD for that new job, must use the EAD for all future and
existing jobs.
Question
10.
How can I find
the USCIS's processing times for I-485s?
Top
©MurthyDotCom
The USCIS provides
processing times that are available through
MurthyDotCom. These processing times are not guaranteed and merely
provide estimates of how long processing might take for I-485s and other
cases. Even if it seems the USCIS should be making a decision on your
case based on the posted processing times, it cannot approve an I-485
unless the priority date is current.
Question
11.
My green card
was approved, but I want to leave the employer that sponsored my green
card. Can I do that? Top
©MurthyDotCom
An employment-based
green card process is premised upon the green card recipient working for
the sponsoring employer once the green card is approved. Therefore, once
the green card is approved, the green card recipient should work for the
sponsoring employer for a sufficient period of time to prove that both
parties intended that such an employment relationship exists. Therefore,
it is risky to leave the employer that sponsored the green card too
quickly after the green card is approved. Issues of fraud may arise and
could create problems later when one seeks to apply for U.S.
citizenship.
Question
12.
My I-485 is
pending, but I want to leave the employer that sponsored my green card.
Can I do that? Top
©MurthyDotCom
The AC21 portability
law permits a beneficiary to change sponsoring employers if the
beneficiary's I-485 has been pending at least 180 days with the USCIS
and the beneficiary moves to a job that is in the same or similar job
classification, as described in the labor certification (or I-140 if no
labor certification is needed). USCIS policy cautions that the I-140
should be approved before AC21 portability is used.
Question
13.
Is applying
for a green card through an I-485 my only option? Top
©MurthyDotCom
One
seeking to become a green card holder may do so either through filing an
I-485 application to
adjust status or by attending a consular processing interview to obtain
an immigrant visa at a U.S. consular post outside the U.S. The choice to
pursue consular processing is generally made at the I-130 or I-140 stage
and progresses through the National Visa Center (NVC) once the I-130 or
I-140 petition is approved. One who initially requests an I-485 process,
but later wants to pursue consular processing, must file an I-824 to
notify the NVC of this choice. One who initially requests consular
processing, but later wants to pursue the I-485, may do so from within
the U.S., but there could be a delay in obtaining the I-485 approval if
the file has to be transferred from the consulate or NVC to the USCIS
Service Center.
Question 14. I recently got married. How can I add my spouse to my
pending green card case? Top
©MurthyDotCom
As long as the marriage took place before the primary applicant’s green
card is approved, the spouse can be a derivative beneficiary of the
green card case. (Please note that I-130 petitions for immediate
relatives of U.S. citizens or children of Lawful Permanent Residents do
not allow for derivative spouses.)
©MurthyDotCom
The derivative spouse can file the I-485 Application to Adjust Status or
apply for an Immigrant Visa through Consular Processing when the primary
applicant’s priority date is current. Even if the primary applicant’s
green card is approved, the derivative spouse can still apply for the
green card if the marriage took place before the primary applicant’s
I-485 or immigrant visa was approved.
©MurthyDotCom
One point of caution is that, once the primary applicant become a Lawful
Permanent Resident, s/he is no longer in nonimmigrant status, which
means the derivative spouse cannot hold a dependent, nonimmigrant status
such as H-4, L-2, J-2, F-2, etc. It is best to consult a qualified
immigration attorney immediately if an individual loses his/her
nonimmigrant status.
Copyright © MURTHY LAW
FIRM. All Rights Reserved
|
|
|
