Adjustment of Status / Consular Processing FAQs20 Mar 2012
There are many questions about adjustment of status and consular processing that fit within the category of frequently asked questions (FAQs). The following address some of the most typical concerns in this area. Many of these are addressed in more detail throughout MurthyDotCom.
Question 1. When can I file an I-485 application for adjustment of status to permanent residence?
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 relative, an I-140 worker petition, 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.
In a family-based preference case, the applicant must wait until the priority date (the date the I-130 was filed) is current. Immediate relatives of U.S. citizens (i.e. spouse, parent, unmarried child under 21) do not face this waiting time. In the case of an immediate relative of a U.S. citizen, the I-130 petition and I-485 application may be filed together, if all other requirements are met.
In an I-140 employment-based case, the applicant often 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.
Question 2. When can I take the medical exam that is required to get a green card?
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.
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.
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?
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. Individuals who do not plan to work do not need an EAD.
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?
One who wishes to travel abroad while an I-485 is pending must have an Advance Parole. The Advance Parole is required for travel by those with pending I-485s, unless they hold H1B, H-4, L-1, or L-2 status. Individuals with H1B, H-4, L-1, or L-2 status 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 following departure.
Question 5. My child was born in the U.S. Do I need to apply for a green card for this child?
In most cases, a child born in the United States is automatically a U.S. citizen. All children mush be listed on their own I-485 applications. However, a U.S. citizen child does not need to file an application or petition with the USCIS in order to obtain an immigration benefit.
Question 6. I do not have a birth certificate. What can I provide instead?
If an applicant does not have a birth certificate, then s/he generally must provide an official statement from the local government body where the birth certificate would be on record, if it existed. This statement is a nonavailability certificate, verifying that there is no birth certificate for the individual. The nonavailability certificate is not needed in limited circumstances where the U.S. Department of State (DOS) has determined that no certificates are available for anyone born in the particular location at the time in question.
If one can establish that the birth certificate does not exist, then it is permissible to use secondary evidence. Secondary evidence is any other official documents confirming parentage and/or date of birth. Often, there is not a single document that contains both the date of birth and the identity of both parents. The facts can be established through such documentation as: school records (school leaving certificate), medical records, marriage records, death/estate records, military records, religious documents, ration cards and similar documents. The secondary evidence can be supplemented by affidavits from individuals, often older family members, who can attest to the individual’s parentage and date of birth.
Question 7. My birth certificate is incomplete. Do I need to provide anything else?
If a birth certificate is incomplete, it is necessary to supply the details through other documents. In some countries, such as India, it is common for the birth to be registered prior to the naming of the child. Thus, birth certificates may not refer to an individual by name.
In such cases, the birth certificate should be provided to the USCIS along with other, secondary evidence to establish that the certificate belongs to the particular individual who is seeking immigration benefits. The standard types of secondary evidence are described in the answer to Question 6 above. No nonavailability certificate is needed, as the birth certificate is available, it just does not have all the information filled out.
Question 8. Can I keep my H1B or L-1 while I have an I-485 application pending?
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.
Question 9. How can I find the USCIS’s processing times for I-485s?
The USCIS provides processing times. These processing times are not guaranteed. There can be variations in how long any particular case takes for processing. Even if it seems, based on the posted processing times, that a decision on an I-485 case is due, the USCIS cannot approve an I-485 unless the priority date is current.
Question 10. My green card was approved, but I want to leave the employer that sponsored my green card. Can I do that?
An employment-based green card process is premised upon the green card recipient promising to work 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 reasonable period of time to prove that both parties intended that such an employment relationship would exist. Therefore, it is risky to leave the employer that sponsored the green card immediately after the green card is approved. Issues of fraud may arise and could create problems later, particularly when one seeks to apply for U.S. citizenship. Of course, no one is tied to an employer forever, and changes can take place over time.
Question 11. My I-485 is pending, but I want to leave the employer that sponsored my green card. Can I do that?
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). It is best if the I-140 is approved before AC21 portability is used, otherwise, it can be risky.
Question 12. Is applying for a green card through an I-485 my only option?
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 13. I recently got married. How can I add my spouse to my pending green card case?
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. Also, cases filed for unmarried sons/daughters of permanent residents will end if the son/daughter gets married.)
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. 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.
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