Guide to Form I-485, Application to Adjust Status

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Information contained here should not be construed as legal advice. Do not act or rely on this information without seeking legal advice from a qualified lawyer who learns your goals, investigates the specific facts of your case, researches how the law may apply to those facts, and then gives advice taking all that into account.

1. Introduction

This Guide explains how a foreign national who is physically present in the U.S. can file with U.S. Citizenship and Immigration Services (USCIS) a Form I-485, Application to Adjust Status, to become a lawful permanent resident (LPR), otherwise known as a green card holder. This Guide focuses on adjustment on the basis of an approved family-sponsored visa petition (Form I-129F or I-130) or employment-based visa petition (Form I-140 or I-526).[1]

Part 2 discusses the requirements for the Form I-485.

Part 3 discusses the related procedures. This includes the procedures for obtaining an employment authorization document (EAD) and advance parole (AP) to travel abroad while your application is pending. Processing times for the I-485, EAD, and AP vary. Our firm will provide you with an estimate.

Part 4 discusses related issues, including (a) adjustment-related issues for H and L nonimmigrants; adjustment-related issues for F nonimmigrants; and (c) benefits under the American Competitiveness in the 21st Century Act for adjustment on the basis of an approved I-140.

Sample Form I-551, Permanent Resident Card (“Green Card”)

1.1 Choosing Between Adjustment and Consular Processing

The beneficiary of an approved immigrant petition may seek permanent residence by filing either an application for an immigrant visa (IV) or a Form I-485, Application to Adjust Status.

While the I-485 is submitted to U.S. Citizenship and Immigration Services (USCIS), an application for an immigrant visa is submitted to a U.S. embassy or consulate abroad. The primary distinction is that to file a Form I-485, the applicant must be physically present in the U.S.[2] So for a person abroad, the most common choice is to apply for an IV. Some beneficiaries of an approved immigrant petition can enter the U.S. with intent to file a Form I-485. But most nonimmigrant visa types cannot be used for this purpose. That’s because most nonimmigrant visas types (for example, B1/B2 visitor visas) require that the holder intend to enter the U.S. temporarily and intend to maintain his or her primary home abroad.[3] Exceptions include, for instance, the H-1B specialty occupation worker visa and the L-1 intracompany transferee visa, which do not require maintenance of a primary home abroad.[4]

Most persons physically present in the U.S. will choose filing an I-485 instead of an IV because: (1) it avoids the expense and inconvenience of travel to the home country; (2) I-485 applicants, including dependent family members, are entitled to employment authorization and permission to travel while the I-485 application is pending; (3) employment-based I-485 applicants receive job mobility (i.e., “portability”) benefits; and (4) there are more options for reconsideration of an unfavorable decision by USCIS. Discuss with your attorney whether adjustment or consular processing is the best choice for you.

1.2 Rights and Obligations of Permanent Residents

To understand what your rights and obligations will be after the I-485 is approved, take a look at our article on the Rights and Obligations of Lawful Permanent Residents, at https://lawandborder.com/rights-and-obligations-of-lawful-permanent-residents/.

One obligation of certain residents which should be emphasized here is the obligation to remove the “conditions” on residence. This applies to:

  • Persons granted LPR status on the basis of a K-1 or I-130 petition filed by a U.S. citizen or lawful permanent resident spouse, if the marriage took place less than 2 years before you became a LPR. Your status and your green card will expire 2 years after you were granted permanent resident. You are required to file a Form I-751, Petition to Remove Conditions on Residence, with USCIS within the 90-day period before your card expires. The petition should be filed jointly with your spouse, unless an exception applies. (If you have children who acquired conditional LPR status concurrently with you, they may be included in the same Form I-751.) Failure to timely file the Form I-751 could result in your deportation. For more details, see the K-1 or I-130 Guide our firm has provided to you.
  • Persons granted LPR status on the basis of an approved Form I-526, Immigrant Petition by Alien Entrepreneur. Your status and green card will expire 2 years after you were granted permanent resident status. You are required to file a Form I-829, Petition by Entrepreneur to Remove Conditions, with USCIS within the 90-day period before your card expires. Failure to file a Form I-829 within that period will result in automatic termination of that status and the initiation of deportation proceedings. For details, see the EB-5 Guide our firm has provided to you.

2. Requirements

To qualify for adjustment of status, applicants have the burden of proving by a preponderance of the evidence[5] that they meet the following requirements[6]:

  1. Physically present in the U.S.
  2. Eligibility to receive an immigrant visa
  3. Visa availability requirement
  4. Not “restricted”
  5. Not “ineligible”
  6. Not inadmissible
  7. Affidavit of Support
  8. Deserving a favorable exercise of discretion

2.1 Physical Presence in the U.S.

An I-485 applicant must be physically present in the United States. This requirement just means that the applicant must not be abroad at the time of filing the application for adjustment of status. If the applicant was admitted to the U.S. legally as a nonimmigrant, typically the passport (entry stamp and no subsequent stamp showing admission to another country) is sufficient evidence of physical presence.

2.2 Eligibility to Receive an Immigrant Visa

The normal requirement to be eligible to receive an immigrant visa is that USCIS must have approved a visa petition on the applicant’s behalf. The visa petition may be a Form I-129F, Petition for Alien Fiancée; I-130; I-140; I-526; etc.

Concurrent Filing

An exception to the requirement that a visa petition must already be approved is that an adjustment of status application may be filed concurrently with the visa petition or subsequent to the visa petition in the following types of cases, provided that approval of the petition would make a visa number “immediately available,” as described below:

  • Immediate relatives of U.S. citizens (i.e., spouse, parent, or unmarried child under age 21);
  • Family-sponsored preference petitions (F1, F2A, F2B, F3, or F4); or
  • Employment-based first, second, or third preferences (EB-1, EB-2, EB-3)[7]

There are pros and cons for filing an I-485 application concurrently with the visa petition. Our firm can help you decide.

Termination or Revocation of Visa Petition

An approved visa petition (I-130, I-140, or I-526) may be revoked after notice and an opportunity to respond if a USCIS officer determines it was approved in error, if it was approved based on a misrepresentation by the petitioner, or for any other good and sufficient cause.[8]

An approved visa petition can be revoked automatically in the following situations[9]:

  • Written notice of withdrawal by the petitioner (I-130 or I-140).
  • Death of the principal beneficiary (I-130 or I-140), unless an exception applies.[10]
  • Death of the petitioner, unless an exception applies (I-130 or I-140).[11]
  • Legal termination of the marriage (I-130 by spouse).
  • Marriage of the beneficiary (e.g., an I-130 by an LPR parent to classify a son or daughter as F2A or F2B is revoked; in contrast, an I-130 by a U.S. citizen parent to classify a child as an immediate relative is reclassified as an F-3 petition if the beneficiary marries).
  • Termination of LPR petitioner’s status (I-130)
  • Invalidation of the labor certification (EB-2 or EB-3 I-140)
  • Termination of the employer’s business (EB-1 outstanding researcher or professor, EB-1 multinational manager or executive, EB-2, or EB-3 I-140)
  • Termination of registration: If the beneficiary of the petition choose to consular process, meaning apply for an immigrant visa (IV), but fails to follow through timely, the petition may be revoked. An IV applicant is “registered” upon signing the DS-230 (Part II of which is signed in the presence of a consular officer) and paying the visa application fee.[12] That registration is terminated if the applicant fails to appear for a scheduled interview and fails to take further action on the case within one year of the scheduled interview[13]; or if he applicant fails to submit the requested evidence within one year of an INA § 221(g) refusal.[14] The registration can be reinstated if the applicant establishes within 2 years after notification of the availability of the visa that failure to apply was due to circumstances beyond his or her control.[15] Examples of such circumstances include illness or other disability, refusal by the applicant’s home country to allow departure as an immigrant, and military service.[16] When a case is terminated, the petition and copies of supporting documents will be destroyed.[17]

Derivative Family Members

The “principal” beneficiary means the person on whose behalf the petition is filed.

The term “derivative” family members includes the spouse and unmarried children under age 21 of the “principal” beneficiary of a visa petition.

Derivative family members are eligible to receive permanent resident status in the same preference category as the principal.

For example, if Alibaba Company files a Form I-140, Immigrant Petition for Alien Worker, on behalf of Ma Yun to work as a computer programmer in the United States, then Ma is the “principal” beneficiary. His wife and unmarried children under age 21 can immigrate too, as “derivative” family members.

Here’s another example: If Ma Yoyo, a U.S. citizen, files a Form I-130, Petition for Alien Relative, on behalf of his brother, then the brother is the “principal.” The brother’s wife and unmarried children under age 21 are “derivative” family members who can immigrate with him.

Note that if the petition is filed by a U.S. citizen petitioner for an immediate relative, there are no “derivative” family members. Separate petitions must be filed for the immediate relative’s spouse and children.

Spouse

A principal adjustment of status applicant who is not currently married should be aware that if he or she marries after being granted LPR status, then his or her spouse cannot become an LPR immediately. Instead, separate Form I-130, Immigrant Petition for Relative, will need to be filed to qualify the spouse in the family-sponsored 2A category. And due to immigration quotas it may take several years before the spouse can qualify for LPR status.

Children: Age-Out Cases

Adjustment applicants whose status is derivative of their parents and who turn 21 years of age prior to the adjudication of their application lose eligibility to adjust their status based upon the principal’s original application. USCIS service centers and district offices generally will expedite an I-485 involving a child who is aging-out if the problem is clearly identified and brought to their attention.

The Child Status Protection Act (CSPA) provides relief from age-outs in certain situations.[18] This law took effect on August 6, 2002, and is not retroactive.[19] If CSPA applies, an expedite request will not normally be necessary.

In the case of a child of an LPR or the derivative child of a family-based or employment-based visa petition, under the CSPA the child’s age will freeze as of the date that a visa number becomes available for the petition in question reduced by the number of days that the petition was pending, but only if the child seeks to acquire the status of an LPR within one year of the date the visa became available.[20] This formula can be broken down into three steps:

  • First, determine the child’s age at the time a visa number becomes available. A visa number becomes “available” on the first day of the month that the Visa Bulletin says that the priority date has been reached. If the visa number is already available when the petition is approved, however, the agencies interpret the “visa availability” date for the CSPA as the date that the petition is approved.[21]
  • Second, subtract from this age the number of days that the visa petition was pending. Generally, a petition is pending between the date that the petition is properly filed (receipt date) and the date that an approval is issued. In family-sponsored cases, the receipt date is also the priority date. For employment-based cases, however, the date to be used in CSPA calculations is the date the I-140 or labor certification is filed (the receipt date), whichever is earlier.
  • Third, determine whether the beneficiary sought LPR status within one year of the visa availability date. The child’s age—determined by the first two steps above—will freeze only if the beneficiary sought to acquire the status of an LPR within one year of the visa availability. For a child beneficiary who is adjusting status, USCIS interprets the phrase “sought to acquire’ LPR status narrowly. USCIS limits this phrase to filing an I-485 application for adjustment.

2.3 Visa Availability Requirement

There is no quota or waiting list for the immediate relatives of U.S. citizens to immigrate. But others, in family-sponsored or employment-based preference categories, must generally wait until a visa is immediately available before they may file their Form I-485. These applicants can determine if a visa is available and when to file their Form I-485 by referring to the U.S. Department of State (DOS)Visa Bulletin, at http://travel.state.gov/content/visas/en/law-and-policy/bulletin.html.

A new Visa Bulletin is published on a monthly basis. DOS posts two charts per visa preference category in each month’s DOS Visa Bulletin:

  • Application Final Action Dates chart, which provides dates when visas may finally be issued; and
  • Dates for Filing Applications chart, which provides the earliest dates when applicants may be able to apply.

In general, adjustment applicants must use the Application Final Action Dates chart to determine whether a visa is available. However, if USCIS determines there are immigrant visas available for the filing of additional adjustment applications, the Dates for Filing Applications chart may be used to determine when to file an adjustment of status application with USCIS. For information about which chart should be used in a particular month, see the USCIS website (http://www.uscis.gov/visabulletininfo) and the Visa Bulletin.

An immigrant visa must also be immediately available at the time of final adjudication. If a waiting list grows in the applicable preference category while the I-485 application is pending such that a case cannot be adjudicated due to the Application Final Dates chart, then the application will be held in abeyance until a visa becomes available. The applicant may maintain status as an I-485 applicant for the entire time the I-485 application is pending.

2.4 Not “Restricted”

The following “restricted” foreign nationals are ineligible to apply for adjustment of status, unless they fall within the provisions of section 245(i) or 245(k) of the Immigration and Nationality Act, as described below:[22]

  1. “Any [person] who was not admitted or paroled following inspection by an immigration officer.”[23] Proof of admission is usually a Form I-94, Departure Record, completed by the applicant when entering the United States and endorsed at the border or port of entry.
  2. Any person who has been employed in the U.S. without authorization prior to filing an application for adjustment of status. This restriction does not apply to a person who is the immediate relative of a U.S. citizen.[24]
  3. Any person who has failed (other than through no fault of his or her own or for technical reasons[25]) to maintain continuously a “lawful status”[26] since entry[27] into the United States. This restriction does not apply to a person who is the immediate relative of a U.S. citizen.[28] Examples of failing to maintain a lawful status include:
  • An H-1B or L-1’s failure to perform the specific work described in the H-1B or L-1 petition with the employer specified in the petition
  • An H-1B or L-1’s failure to perform the specified work for the entire period of stay in the U.S. in such status
  • An F-1 student’s failure to attend school for the entire required period
  • Staying in the U.S. beyond the expiration date of the Form I-94, Departure Card
  • An H-1B’s transfer to a worksite not authorized by the government
  • Certain crimes

For further information about the requirements for maintaining lawful nonimmigrant status, see Nonimmigrants: Admission, Rights, and Responsibilities, at https://lawandborder.com/admission-to-the-u-s-and-your-right-and-responsibilities-as-a-nonimmigrant/.

  1. Any person admitted as a visitor under the Visa Waiver Program (VWP), other than the immediate relative of a U.S. citizen.[29]

As background, the VWP allows qualifying foreign nationals of designated countries to ether the U.S. for up to 90 days for purposes of business or pleasure without first obtaining a visa.[30] Making a willful misrepresentation to a CBP officer at the port of entry could make a VWP ineligible for future immigration benefits. Moreover, under U.S. Department of State rules, if a person engages in conduct inconsistent with their nonimmigrant status within 90 days of a visa application or admission to the U.S., a consular officer may presume that the applicant’s representations to the consular officer or CBP officer at the border about engaging in only status-compliant activity were willful misrepresentations of their true intentions.[31] Examples of inconsistent activity may be employment in the U.S., giving up a foreign residence, terminating foreign employment, entering into a long-term lease in the U.S., shipping household goods to the U.S., or getting a local driver’s license.[32] To avoid the appearance of a misrepresentation, it may be wise to wait for more than 90 days after entering the U.S. to file an I-485. Yet, if the individual overstays, U.S. Immigration and Customs Enforcement (ICE) has authority to order their removal, and removal cannot be contested on the basis that thy have a pending Form I-485. It is USCIS policy that an officer adjudicating a Form I-485 will not refer a case to ICE for removal unless ICE has already issued a removal order, the individual is under investigation for, has been arrested for, or has been convicted of an egregious public safety offense, or there are fraud or national security issues that require resolution.[33] So a VWP entrant who is otherwise eligible to adjust status as an immediate relative needs to choose between violating their status by overstaying[34] or filing before they have overstayed, potentially creating a presumption of misrepresentation. An overstay and preconceived intent to immigrate at the time of VWP entry could also be considered negative factors by USCIS in determining whether you deserve a favorable exercise of discretion, as discussed below.

  1. Any person who entered the United States in transit without a visa[35]
  2. Any person who, on arrival in the United States, was serving in any capacity on board a vessel or aircraft or was destined to join a vessel or aircraft in the United States to serve in any capacity[36]
  3. Any person who seeks adjustment of status pursuant to an employment-based immigrant visa petition and who is not maintaining a lawful nonimmigrant status at the time he or she files an application for adjustment of status.[37]

The Section 245(i) Exception to “Restricted” Foreign Nationals

In short, 245(i) allows a “restricted” foreign national (and any accompanying or following-to-join spouse or child) to adjust if he or she is (a) the beneficiary of an immigrant petition filed with the Immigration and Naturalization Service (INS) or of a labor certification application filed with the Department of Labor on or before January 14, 1998; or (b)(1) the beneficiary of an approvable immigrant petition filed with INS or labor certification filed with the Department of Labor on or before April 30, 2001, and (b) he or she was physically present in the U.S. on December 21, 2000. An applicant under this second exception must pay a penalty of $1000 to DHS in addition to the normal filing fees.[38] DHS has announced that, generally speaking, a person may be allowed to take advantage of this exception to the bars to adjustment of status even if the person is adjusting status on the basis of a different immigrant petition or labor certification application than the one filed on or before January 14, 1998.[39] The immigrant petition or labor certification filed before the deadline need not even have been approved, as long as it was “approvable” when it was filed.

The Section 245(k) Exception to “Restricted” Foreign Nationals

Section 245(k) will exempt an adjustment applicant from being a “restricted” foreign national if:

  1. He or she “restricted” only on the basis of unauthorized employment, failing to maintain lawful nonimmigrant status, other otherwise violating the terms of a nonimmigrant visa[40];
  2. On the date of filing, the applicant is present in the U.S. pursuant to a lawful admission; and
  3. Subsequent to such lawful admission, the applicant has not, for an aggregate period exceeding 180 days—failed to maintain, continuously, a “lawful status”; engaged in unauthorized employment; or otherwise violated the terms and conditions of admission.

USCIS has indicated that the filing of an I-485 does not necessarily stop the clock, meaning that continued violations may still count toward the 180 days.[41]

Moreover, each ground of ineligibility is counted separately in calculating whether the 180 days have been reached. For example, if an applicant’s H-1B status has expired for 10 days and she continues to work, then she has been out of status for 10 days and has engaged in unauthorized employment for 10 days. This is a total of 20 days towards the 180-day clock.[42]

2.5 Not “Ineligible”

“Ineligible” foreign nationals are, naturally, ineligible to apply for adjustment of status. That’s true even if they would otherwise fall within the section 245(i) or 245(k) exception.

“Ineligible” persons include those who:

  1. Are subject to a two-year foreign residence requirement of INA §212(e) as the consequence of prior J-1 exchange visitor status, unless such requirement has been fulfilled or waived.[43]
  2. Are already admitted as a lawful permanent resident on a conditional basis.[44]
  3. Are admitted to the U.S. as a fiancé(e) or spouse (K-1 or K-3 status) or the dependent of a fiancé(e) or spouse (K-2 or K-4 status) unless the I-485 is based on marriage to the K visa petitioner and, in the case of a fiancé(e), the marriage was contracted within 90 days of entry into the U.S.[45] Note that a fiancé(e) who contracts a valid and bona fide marriage to the U.S. citizen petitioner within the requisite 90-day time period remains eligible to adjust status on that basis, even if the marriage is legally terminated (whether by death, dissolution, or divorce) prior to adjustment of status and regardless of whether the nonimmigrant fiancé(e) remarries thereafter.[46]

2.6 Not Inadmissible

Generally, I-485 applicants must not fall within the “grounds of inadmissibility.” This is a list of categories of persons who are prohibited admission to the United States because they have committed certain crimes, have violated certain immigration laws, have made misrepresentations in immigration applications, etc.

Notably, members of the Chinese Communist Party are inadmissible, with certain exceptions.

Still, if the adjustment applicant is eligible for and is granted a waiver of a ground of inadmissibility or another form of relief, the applicant may remain eligible for adjustment.

For more, see our article, Grounds of Inadmissibility under U.S. Immigration Law, at https://lawandborder.com/grounds-of-inadmissibility/.

2.7 Affidavit of Support

Generally speaking, all applicants must show they will not become a public charge, meaning somebody likely to rely on government support.

For adjustment on the basis of an approved I-129F, I-130, or I-140 (where the petitioning entity is 5% or more owned by your family), you will be required to file a Form I-864, Affidavit of Support, by the petitioner. Please refer to our firm’s separate Guide to the Form I-864, Affidavit of Support.

For adjustment as the derivative family member of the principal beneficiary of the other I-140s or an I-526, the instructions to the Form I-485 are silent about what evidence is required to overcome the public charge ground of inadmissibility. In some cases, it may be helpful for the derivative family members’ cases to include a Form I-134, Affidavit of Support, by the principal.[47]

2.8 Deserving a Favorable Exercise of Discretion

Adjustment is considered to be a discretionary benefit,[48] meaning that an applicant who meets the eligibility requirements may be granted the benefit as a matter of administrative grace but is not entitled to adjustment. Even if an applicant is statutorily eligible, USCIS may deny the application based upon a determination that discretion should not be favorably exercised.[49]

Absent compelling negative factors, an officer should exercise favorable discretion and approve the application.[50] If the officer finds negative factors, the officer must weigh all of the positive and negative factors. The list of issues and factors may include, but is not limited to:[51]

  • eligibility
  • immigration status and history;
  • family unity;
  • length of residence in the United States;
  • business and employment; and
  • community standing and moral character.

3. Procedures

3.1 Filing the Adjustment Application

Jurisdiction

The application is filed by mail with USCIS using Form I-485, Application to Adjust Status.

Family-sponsored I-485s (including those for K-1 fiancées) are filed with the USCIS Chicago Lockbox.[52] They are then forwarded to USCIS National Benefits Center for adjudication. If an interview is needed, the case is transferred to the local field office after preliminary processing by the National Benefits Center. [53]

I-485s based on approved I-140s or I-526s are filed with the USCIS Phoenix or Dallas Lockbox, depending on where the applicant resides. Preliminary processing and adjudication is then performed at a USCIS regional service center. (Which specific service center will vary, depending on USCIS needs to distribute its caseload). If an interview is required, the service center will forward the case to a local field office for interview and adjudication.

For this purpose, “preliminary processing” includes all necessary pre-interview processing of your application, including conducting background security checks[54], and initial evidence review. At this stage, USCIS also will adjudicate any associated applications for employment authorization and advance parole.

Medical Exam

A key part of the application is the Form I-693, Medical Exam. Effective November 1, 2018, the exam must be filed with USCIS with the underlying adjustment application within 60 days of when the civil surgeon signs the Form I-693. The exam is valid for 2 years from the date of that signature.[55] A medical exam is not required as initial evidence.[56] In other words, it’s permissible to wait to submit the exam at an interview or after a request for evidence (RFE). In choosing whether to file the medical exam with the initial I-485 filing, consider the trade-off: you avoid the possible cost of getting a new exam if your case takes more than 2 years, but you create the possibility of delay associated with an RFE for the medical exam.

The exam is required to establish that an applicant is not inadmissible to the U.S. on public health grounds. The grounds of inadmissibility under U.S. immigration laws are divided into four categories:

  1. Communicable diseases of public health significance: The doctor will test for tuberculosis and syphilis. The doctor will also evaluate your for other sexually transmitted diseases and Hansen’s Disease (leprosy). Contact our firm if you have ever been diagnosed with any of these diseases, including if you have ever had a positive tuberculosis skin test.
  2. Lack of required vaccinations: During the exam, you must present proof of vaccination against the following diseases: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B, hepatitis A, hepatitis B, varicella (chickenpox), hemophilic influenza type B, rotavirus, meningococcal, and pneumococcal vaccines. If your records show that you have not received a complete series of each vaccine and there is no other evidence of immunity, the doctor will administer a single dose of each missing vaccine at the time of the medical examination and certify your eligibility for a “not medically appropriate” waiver if the dose administered during the examination does not complete the vaccine series. If there are other medical reasons why it would not be safe for you to have the vaccine (for example, allergies to eggs and yeast, or hypersensitivity to prior vaccines), please advise our law firm. The administered vaccines may or may not be covered by your medical insurance. Check your policy.
  3. Physical or mental disorders with harmful behaviour: Contact our firm if you have ever had any history of attempted suicide or harmful or violent behaviour resulting in injury to people, animals, or property.
  4. Drug abuse or addiction: Contact our firm if you have ever been an alcoholic, been arrested for driving under the influence of alcohol, or have ever used marijuana or illegal drugs.

Here’s the procedure for completing the medical exam:

    • Step 1: If you are currently in the U.S. in K-1 fiancé€ or K-2 dependent status, and you had a medical exam by a panel physician abroad within the year prior filing your I-485, you do not need a new medical exam.[57] But you may need the doctor to complete a Vaccination Record. To decide if this is necessary, check to see if the doctor who completed your earlier medical exam gave you a copy of Form DS-3025, Vaccination Documentation Worksheet.
      • If yes, it’s safe to assume that the doctor included the original Form DS-3025 in the sealed envelope with the rest of your medical exam that you gave the U.S. Consulate during your K visa appointment. You need not have your vaccinations checked again.[58] Give a copy of your Form DS-3025 to our firm.
      • If no, then make an appointment with the doctor as explained below. Let the doctor know that the sole purpose of the appointment is to complete Part 7 (Vaccination Record) of Form I-693, Report of Medical Examination and Vaccination Record.[59]
    • Step 2: Make an appointment with a USCIS-designated doctor. A list of doctors is available at www.uscis.gov. On the main menu, choose “Tools” then “Find a Doctor.”
    • Step 3: Complete Part 1 of the Form I-693 which our firm provides to you. But do not sign until instructed to do so by the doctor.
    • Step 4: Bring to the appointment: (1) your unexpired passport, driver’s license, or state ID; (2) any proof of prior vaccinations; and (3) the Form I-693 with Part 1 completed. You will be responsible for paying for the appointment.
    • Step 5: After the exam (and after any necessary laboratory results have been received by the doctor), the doctor should give you the completed form in an envelope with your name written on it. The envelope will be sealed to prevent tampering and should be opened only by USCIS. But you should ask for a copy of the form for your personal records.
    • Step 6: Share the copy of the form with our law firm so we can review it for completeness.

The results of the exam are confidential, except that they may be used for immigration purposes and, when required by law, the civil surgeon may share your results with public health authorities.

Contents of the Adjustment of Status Application

The following is a list of documents typically filed with an adjustment application, in the order specified by USCIS.[60] Please note that the documents filed in any given case may differ slightly:

For the Adjustment Application

  1. Filing fee: $1140, except that for applicants under 14 years of age filing with the I-485 application a parent, the fee is $750.[61] In addition, applicants must pay a biometrics fee of $85. (Applicants under age 14 or at least age 79 are not charged a biometric fee.).[62]
  2. Form G-28, Notice of Entry of Appearance as Attorney[63]
  3. Form G-1145, E-Notification of Application/Petition Acceptance (if the case is filed with a USCIS Lockbox)
  4. Form I-485, Application for Adjustment of Status
  5. Two U.S. passport-style photos, taken within 30 days of filing
  6. Birth certificate (or secondary evidence of birth)
  7. Evidence of admission or parole for your most recent arrival into the United States. Typically, this will be:
    1. Passport (ID pages and page with admission or parole stamp issued by a U.S. Customs and Border Protection officer)
    2. Passport page with nonimmigrant visa; and
    3. Form I-94, Arrival-Departure Record.[64]
  8. Form I-693, Medical Examination of Aliens Seeking Adjustment of Status, and vaccination supplement, performed by a USCIS-designated physician. (An applicant who is a K-1 fiancé(e) or K-2 dependent who had a medical examination within the past year as required for the nonimmigrant fiancé(e) visa only needs to submit a vaccination supplement—if not previously completed—not the entire medical report.). As discussed above, you have the option to file the medical exam with the initial filing or later.
  9. Evidence of any criminal history, including original our court-certified copies of the arrest records, court dispositions, or both.[65] Appropriate records are required even if no charges were filed, and even if the arrest or conviction was vacated, set aside, sealed, expunged, or otherwise removed from your record.[66]
  10. Evidence of the underlying basis to adjust status: Form I-797, Approval Notice (for Form I-129F, I-130, I-140, or I-526), unless concurrently filed. Except in immediate relative cases, our firm also typically files a copy of the Visa Bulletin showing that a visa is available.
  11. Marriage certificate and evidence of termination of all prior marriages by applicant and spouse
  12. Copies of applicant’s passport(s) with any U.S. visas and entry stamps.
  1. Evidence of continuously maintaining a lawful status since arrival in the United States: Include evidence for every time you entered the United States and for the time periods spent in the United States. This evidence must prove you have continuously maintained lawful immigration status while in the United States and are therefore not barred from adjustment by INA § 245(c)(2).[67] Note:
    1. This is not required if you are applying as the immediate relative of a U.S. citizen.
    2. This is required if, for example, if you are applying under a family-based preference category or an employment-based preference category.
    3. Common evidence of maintaining a lawful status includes, for example:
      1. Forms I-797 approval notices for all extensions and changes of nonimmigrant status
      2. Forms I-797 receipt notices for any pending application for extension or change of nonimmigrant status
      3. Forms I-94, Arrival-Departure Records
      4. Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status
      5. Form DS-2019 (formerly IAP 66), Certificate of Eligibility for Exchange Visitor (J-1) Status
      6. Employment authorization cards
  2. Proof of offer of employment by petitioner (in I-140 cases)
  3. Evidence of any public assistance you received in the United States
  4. Any additional documentation proving eligibility
  5. Evidence of any name change

Financial Documents

  1. Form I-864 or I-134, Affidavit of Support (as described above) and supporting evidence

Valid Marriage

  1. For the spouse of a U.S. citizen or lawful permanent resident or for a derivative spouse, present evidence of the validity of the marital relationship

For the Employment Authorization Application[68]

  1. Form G-28, Notice of Entry of Appearance as Attorney
  2. Form G-1145, E-Notification of Application/Petition Acceptance (if the case is filed with a USCIS Lockbox)
  3. Two U.S. passport-style photos, taken within 30 days of filing
  4. Form I-765, Employment Authorization Application
  5. A copy of the applicant’s last EAD (front and back), if any
  6. Proof of identity: a copy of state driver’s license, state ID, or passport ID page for identification and security background check purposes. The document must clearly show your facial features and biographical information.

For the Advance Parole Application

  1. Form G-28, Notice of Entry of Appearance as Attorney
  2. Form G-1145, E-Notification of Application/Petition Acceptance (if the case is filed with a USCIS Lockbox)
  3. Two U.S. passport-style photos, taken within 30 days of filing
  4. Form I-131, Application for Travel Document (Advance Parole)
  5. A copy of an official photo identity document showing your photo, name, and date of birth. (Examples: Your current Employment Authorization Document, if available; a valid state driver’s license or ID card; passport identity page; Form I-551, Permanent Resident Card; or any other official identity document.)[69]
  6. A copy of any document issued to you by USICS showing your present status, if any, in the United States. (Example: passport ID page, visa, CBP admission stamp, and most recent Form I-94, Departure Record)

Note that certified English translations need to be filed for any foreign-language documents.

USCIS will accept copies of supporting documents, but may issue a request to review the originals.

3.2 Receipt Notice

Receipt notices for each application will be issued by USCIS and sent to our law firm. We will give them to you.

3.3 Biometrics

After filing your application for adjustment of status, USCIS will send you a notice asking you to report to a local USCIS Application Support Center (ASC) for “biometrics capture,” which basically means that your fingerprints and photograph will be digitally recorded.[70] The fingerprints will be transmitted to the FBI for a background check. When you receive this notice, please contact our office for further instructions. It is important that you follow the instructions in order to avoid delaying processing of your case.

3.4 Employment Authorization Document and Advance Parole

In February 2011, USCIS began combining the employment authorization document (EAD) and advance parole (AP) on a single card for certain I-485 applicants who apply for both at the same time.

With the exception of H and L nonimmigrants (as explained in Part 4.1), an adjustment applicant may only work with a valid EAD and may only depart the U.S. with a valid AP.

May 2010 EAD/AP Card Design

May 2017 EAD/AP Card Design

Separate application forms still need to be completed for the two benefits. The application for an EAD is filed on Form I-765, Application for Employment Authorization. The AP application is Form I-131, Application for Travel Document.

After filing, you will be scheduled for a biometrics appointment. Then, the card will be issued. Regulations previously required adjudication of I-765s within 90 days, but that requirement has been rescinded.[71] Check current USCIS processing times at https://egov.uscis.gov/processing-times/. If you have an emergency that requires international travel, it may be possible to obtain the card on an expedited basis.

Based on an information-sharing partnership between USCIS and the Social Security Administration, the Form I-765 allows the applicant to request an initial or replacement Social Security card. A Social Security number is needed to work in the U.S. The Social Security card is delivered by mail to the applicant, usually within 2 weeks after the EAD card is delivered.[72]

Approval of employment authorization is discretionary.[73] Effective June 2021, USCIS extended the validity of EADs being issued from one to two years to reflect the reality that I-485 adjudication can take more than one year.[74] In the event that your I-485 is still pending 7 months before the card expires, please contact us then so we can discuss whether or not it is necessary to apply for a renewal. USCIS will accept renewal applications not more than 180 days before the current card expires.[75]

Travel with the AP

The basic rule about traveling abroad while your adjustment of status application is pending is that you should always contact our firm before you finalize your travel plans so that we can discuss whether and how you will be eligible to reenter the U.S.

With the exception of H and L nonimmigrants, an I-485 will be automatically denied if an applicant departs the U.S. before being granted AP.[76] Nor is reentry guaranteed if you have an AP.[77]

Persons who have been unlawfully present in the U.S. for 180 days or more after April 1, 1997, and before filing an adjustment application should not depart the U.S. at all (even with an AP) until LPR status is actually granted because departure will make them ineligible for readmission to the U.S. for 3 or 10 years, depending on the length of unlawful presence.

When you are reentering the U.S., at the port of entry you should present your valid, unexpired passport and combination EAD/AP card to the inspector. (Also carry the Receipt Notice for your adjustment application, but you don’t need to give it to the inspector unless requested).

Once the inspector is satisfied you are entitled to parole, the inspector will endorse your passport with a parole stamp, indicating the basis of parole (e.g., “I-512, adjustment applicant”), the date to which paroled, the date of action, the port of entry, and the inspector’s stamp number. Send our firm a copy of the passport page so we can review it to make sure there is no problem.

3.5 Social Security Number

Applicants filing both Form I-485 and I-765 can now request that they be issued a Social Security number (SSN) and card, according to a USCIS announcement on Aug. 8, 2021.[78] The Forms both ask, “Do you want the SSA [Social Security Administration] to issue you a Social Security card?” After each form is approved, “USCIS will electronically transmit the data to the Social Security Administration. Upon receiving the data, the Social Security Administration will automatically assign an original SSN” (if needed) and issue a card.

The Social Security card should arrive in the mail from the Social Security Administration within 2 weeks at the same address as the EAD or green card.

Previously, it was necessary to apply for an SSN by filing a Form SS-5, Social Security Number Application, at a Social Security office. USCIS believes the new process is more efficient:

It is fine to request Social Security cards in both the I-765 and I-485. The difference between the Social Security cards issued with the EAD and green card are that the Social Security card issued with the EAD will bear the legend, “Valid for Work Only with DHS Authorization.” The Social Security card issued with the green card will not have a legend.[79] In other words, a person with an EAD hired for a job is required as part of the Form I-9, Employment Eligibility Verification, process to show an employer their EAD; in contrast, once the I-485 is approved, a permanent resident does not need to present an EAD.

3.6 Security Checks and National Security Concerns

USCIS conducts background checks on all applicants for adjustment of status to enhance national security and protect the integrity of the immigration process by ensuring that USCIS grants lawful permanent resident status only to those applicants eligible for the requested benefit.

In general, a national security concern exists when a person or organization has been determined to have a link to past, current, or planned involvement in an activity or organization involved in terrorism, espionage, sabotage, or the illegal transfer of goods, technology, or sensitive information.

3.7 Interview and Adjudication

At some point after USCIS has completed preliminary processing of the I-485, the applicant will be scheduled for an interview at the USCIS local office with jurisdiction over the applicant’s place of residence, unless the interview is waived.

In family-based cases, USCIS generally requires the petitioner to also appear for the interview with the adjustment of status applicant and any derivatives, except in Violence Against Women Act (VAWA)-based cases.[80]

The interview may be waived for:[81]

  • Unmarried children of U.S. citizens or permanent residents, if not filed as part of a family
  • Parents of U.S. citizens
  • Fiance(e)s of U.S. citizens who married within 90 days, and their children

The NBC identifies cases eligible for interview waivers and does pre-processing for them. The files are sent to various USCIS field offices for adjudication. Officers at the NBC and at the field office locations who review and/or adjudicate these cases may determine based on information in the file, that the applicant needs an in-person interview.[82] Waiver of the interview is completely discretionary.

If the interview is waived but USCIS needs additional evidence in order to make a decision in your case, USCIS may issue a letter called a request for evidence (RFE).

USCIS conducts interviews in employment-based I-485 cases.[83]

USCIS’ decision may be an approval, request for evidence, denial, or notice of intent to deny. There is no time specified in the regulations or USCIS policy manual for USICS to issue its decision. If your I-485 is approved, you become an LPR. If your I-485 is denied, you should receive a letter from USCIS explaining why.[84] There is generally no appeal,[85] although it may be possible to file a motion to reopen, motion to reconsider, or a new application.

USCIS may issue a Notice to Appear (NTA) if a person whose I-485 is denied is subject to removal (i.e., deportation).[86] An NTA notifies the individual to appear in immigration court, where a judge will determine whether the individual should be removed. It may be possible to re-file the I-485 before the court.[87]

If an individual entered under the Visa Waiver Program, they may be subject to removal from the U.S. without a hearing in immigration court. Instead, U.S. Customs and Immigration Enforcement (ICE) has authority to order the removal of a VWP overstay.[88]

3.8 Rescheduling Your Interview

An applicant may request, for good cause, that the interview be rescheduled.[89] In order to reschedule the interview, the adjudicator, in his or her discretion, must determine that the applicant, petitioner, beneficiary, lawyer,[90] or other individual is unable to appear at the scheduled date and time because of circumstances beyond the individual’s control.[91]

As of June 2021, the standard USCIS appointment notice reads:

YOU MUST APPEAR FOR THIS INTERVIEW – However, if you are ill, have nay symptoms of illness, have traveled outside the United States within the past 10 days * (unless you traveled outside of the United States in a personal vehicle); or had contact with a person who tested positive for COVID-19 within the past 14 days; or are at heightened risk due to age or an underlying health condition and would like to reschedule your appointment, call the U.S. Citizenship and Immigration Services (USCIS) Contact Center at 1-800-375-5283 … as son as possible to reschedule your appointment. There is no penalty for requesting that your appointment be reschedule. If you have been fully vaccinated for COVID-19 (defined as at least 2 weeks after second dose of Pfizer and Moderna vaccine, or 2 weeks after single J&C vaccine), you do not need to reschedule after contact with a positive person as long as you continue to not have symptoms.

If the adjudicator determines that good cause exists for the applicant’s request, the adjudicator will reschedule the interview and mail a new interview notice. If the adjudicator determines that no good cause exists, the adjudicator will deny the application for the applicant’s failure to prosecute it.[92]

3.10 Green Card Production and Temporary Evidence of Permanent Residence

Once the I-485 is approved, the applicant will be sent the Form I-551, Permanent Resident Card (aka “green card”) by mail. Typically this takes about 1-2 months after the application is approved.

USCIS announced new designs for the green card in May 2010 then again in May 2017. Most of the features of the new designs are meant to prevent counterfeiting and tampering. One thing to note is that where the card refers to your “USCIS #,” that is the same thing as your “A#,” which is the permanent file number which USCIS has assigned to you.

May 2010 Green Card Design
May 2017 Green Card Design

If you need temporary evidence of permanent resident status while you are waiting for the green card you may be able to obtain it from the local USCIS office. A temporary I-551 stamp in your unexpired passport or a temporary resident card can be issued at the nearest USCIS district office for both family-based and employment-based applicants. These are generally valid for one year, which is normally ample time for the applicant to receive the actual permanent resident card from USCIS. Procedures for issuance of the temporary I-551 stamp vary by locality.

3.10 If Your Green Card Is Approved While You Are Abroad

If your I-485 is approved while you are abroad, but you don’t yet have the permanent resident card, then upon returning, when you go through the U.S. Customs and Border Inspection (CBP) line, show the officer your passport, your EAD/AP combo card, and a copy of your I-485 approval notice stating that you are now a permanent resident.

The officer has two choices for what to do:

1. Most frequently, the officer will check her computer (the CLAIMS database) to confirm that your I-485 has been approved and then put a stamp in your passport indicating that you are being admitted as a permanent resident. In effect, the officer would be using her power to waive the requirement that you present the green card because you have “good cause” for not having it.[93]

2. Less frequently the officer will use her authority to “parole” you in for deferred inspection at another time.[94] In effect, the officer would let you in temporarily, telling you to report to a CBP office later, at which time you can present further evidence of your permanent resident status, such as your green card. The officer at the port of entry would add a parole stamp to your passport and/or issue you a white Form I-94 card on which she would place a parole stamp.

3.11 Rescission

Note that a person who has been granted adjustment may have their LPR status rescinded later if it appears that the individual was not eligible for adjustment. USCIS must seek rescission within five years.[95] All family members who derived status from the person rescinded also lose their status.

Rescission requires only a showing that the alien was ineligible for adjustment at the time it was granted; a showing of fraud or material misrepresentation is not required. Once status is rescinded, the alien is placed in the status he or she held prior to the adjustment. This may mean that the alien will be placed in removal proceedings if the nonimmigrant status held prior to adjustment has expired. Rescission is not required prior to the commencement of removal proceedings.

4. Related Issues

4.1 Authorized Stay While I-485 Is Pending

If a Form I-485 is properly filed, then (a) an applicant is in a period of “authorized stay” so long as the application is pending, and (b) the applicant does not accrue “unlawful presence” in the United States, even if it is ultimately determined that the applicant was not eligible for the benefit in the first place.[96]

4.2 Adjustment-Related Issues for H and L Nonimmigrants

If you are an H-1B temporary worker, L-1 intracompany, or their H-4 dependent, once you file for adjustment, you will be allowed to remain in the United States for two independent reasons—first, as an adjustment applicant, and second, because you have lawful nonimmigrant status. The question is whether you should continue to comply with the terms of your nonimmigrant status.

There is no harm in applying for an EAD or AP. But if you use an EAD or AP, you may lose your nonimmigrant status:

  • If you use the EAD to do work other than authorized by the H or L petition, you are no longer in lawful nonimmigrant status. For example, an H-1B is authorized to work only for the petitioning employer, so a person who uses the EAD to work elsewhere is no longer in lawful nonimmigrant status.
  • If you enter with an AP, you are no longer in nonimmigrant status. Instead, you are a “parolee.” Interestingly, however:
    • A person who has entered with AP may nevertheless remain eligible for extension of status: An alien who has an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid approved petition. If USCIS approves the alien’s application for an extension of nonimmigrant status, the decision granting such an extension of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification.[97]
    • USCIS “will not consider a paroled adjustment applicant’s failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment” so long as the nonimmigrant is working in accordance with their H-1B or L-1 petition.[98]

Depending on the specific facts of your case, it may or may not be fine to use the EAD and AP, but before you do so please contact our firm to discuss the advantages and disadvantages. For example:

  • If the I-485 application is denied at a time that you are still in lawful H-1B or L-1 nonimmigrant status, you can continue to live and work in the U.S. without interruption.
  • If the I-485 application is denied at a time that you are abroad, you may not be readmitted with the AP. But you may be readmitted pursuant to an approved H or L petition if you have been maintaining lawful nonimmigrant status.
  • If the H-1B or L-1 uses an EAD or AP, so is no longer in valid nonimmigrant status, neither are the H-4 or L-2 dependents.
  • It may be easier to change employers if you can use the EAD rather than have to file a new H-1B petition (but note that H-1B portability (beginning work with the new employer when the H-1B petition is filed rather than waiting for it to be approved) may be possible.
  • Using the AP may facilitate travel if you would otherwise need to apply for a visa abroad. On the other hand, if you can’t wait for the AP, you can still travel without it if you are complying with the terms of your status. However, if you leave the U.S. without the AP and you have violated the terms of your nonimmigrant status, the departure constitutes abandonment of your adjustment of status application.
  • A nonimmigrant must follow various rules in order to comply with the terms of your status. For example, an H-1B is supposed to be paid the prevailing wage, work only at designated worksites, and work only in the occupation listed in the H-1B petition. Depending on the specific facts of your case, you may wish to avoid certain of those requirements by stopping compliance with nonimmigrant status.
  • If you plan to marry a foreign national while your I-485 is pending, that person’s only option to enter the U.S. may be in H-4 or L-2 status, which would require you to have maintained your H-1B or L-1 status.
  • By terminating their nonimmigrant status, a person saves time towards the time limit in nonimmigrant status—6 years for H-1B (with limited exceptions), 5 years in L-1B, or 7 years in L-1A. That time can be saved for later in case the I-485 is denied.
  • An H-4 or L-2 can’t work in nonimmigrant status but can with the EAD.

If the decision is to end your nonimmigrant status, one way to do so is to leave the U.S. and reenter as a parolee. Another way is to contact the USCIS to ask that the H-1B petition be revoked and the Department of Labor to ask that the Form ETA-9035, Labor Condition Application, be withdrawn.[99]

Finally, if your nonimmigrant status is scheduled to expire while your I-485 is pending, please contact our firm about 5 months before the expiration date to discuss the advantages and disadvantages of extending your nonimmigrant status.

4.3 Adjustment-Related Issues for F Nonimmigrants

It’s clear that merely filing an I-485 doesn’t violate the terms of one’s F status.[100] That is not a basis for a designated school officer (DSO) to terminate a student’s SEVIS record.[101]

But certain actions that you take once you have filed a Form I-485 could cause you to lose nonimmigrant F status. For example:

    • Doing any work not authorized by F-1 regulations, even if you have an EAD card issued on the basis of your pending I-485.
    • Departing the United States. As mentioned above, if you depart the U.S. while your I-485 is pending, your I-485 is considered automatically withdrawn. So to travel while the I-485 is pending, you need to get advanced parole before leaving the U.S. When you return, you will be in “parole” status, not F status.
    • Taking any other action that violates your F-1 status, such as failing to take a full course load.

If you can avoid losing F status, the benefits of maintaining that status while your I-485 is pending are:

    • An applicant who has filed an I-485 and remains in valid nonimmigrant status may continue in such status upon denial of the I-485.[102]
    • If you are employed after losing F status, Social Security and Medicare taxes may be deducted from your paycheck, and you may lose tax treaty benefits.

Before you take any action that may terminate your F status, please discuss the pros and cons with our firm.

4.4 AC21 Benefits for Adjustment Based on an Approved I-140

The American Competitiveness in the 21st Century Act (AC21)[103] improved the flexibility of the adjustment process and increased its attractiveness over consular processing in a number of ways:

  • Exemption to Six-Year H-1B Cap: AC21 §106(a) created an exemption from the six-year cap on H-1B eligibility for individuals who have filed either a labor certification application or an employment-based I-140 at least 365 days prior to the filing of an application to extend their H status beyond the statutory six-year limit. AC21 §106(b) directs the attorney general to “extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.”
  • Extensions Due to Per-Country Ceiling: AC21 §104(c) also allows individuals who are beneficiaries of an approved employment-based first, second, or third preference petition, i.e., Form I-140, a three-year extension beyond the six-year limit where the individual could have filed for an I-485 but for visa unavailability. The Service has indicated in a memorandum that despite the name of this statutory section, “One-Time Protection Under Per Country Ceiling,” more than one extension may be granted.[104]
  • AC21 §106(c) amended INA §204 to permit an individual with an approved employer-sponsored I-140 petition whose I-485 has been pending for 180 days or more to change jobs without jeopardizing the validity of the underlying approved I-140 filed by the previous employer, “if the new job is in the same or a similar occupational classification as the job for which the petition was filed.”[105] Of course, don’t change jobs without first consulting with our law firm regarding the specifics of this rule.

5. Conclusion

Feel free to contact our firm with any related question or concern.

  1. This Guide does not discuss special laws providing for adjustment of status of specific groups of applicants, such as the Nicaraguan Adjustment and Central American Relief Act (NACARA), asylees and refugees, adjustment of status for battered spouses and children of U.S. citizens or LPRs under the Violence Against Women Act (VAWA), the Diversity Lottery, the Legal Immigration and Family Equity Act of 2000 (LIFE Act), and registry. Nor does this Guide cover procedures for adjustment for individuals in removal proceedings in Immigration Court.

  2. INA § 245(a).

  3. INA § 101(a)(15)(B).

  4. INA § 101(a)(15)(H), (L).

  5. See INA § 291.

  6. See generally INA § 245(a) and 8 C.F.R. §s 245.1 – 22.

  7. 8 C.F.R. § 245.2(a)(2)(i)(B); 7 USCIS-PM A(3)(C).

  8. INA § 205 (USCIS may revoke for “good and sufficient cause”); 8 C.F.R. § 205.2; AFM ch. 20.3; see Kurzban’s Imm. L. Sourcebook ch. 6.XIV.K (13th ed. 2012).

  9. 8 C.F.R. § 205.1(a).

  10. 7 USCIS-PM A(8).

  11. Id.

  12. 9 FAM § 42.67 N1 (May 19, 2003).

  13. 9 FAM § 42.83 PN1 (Oct. 31, 2008); 9 FAM § 42.83 N1.1 (Dec. 15, 1994).

  14. 22 C.F.R. 42.83.

  15. INA § 203(g); 9 FAM § 42.83 PN1 (Oct. 31, 2008).

  16. 22 C.F.R.§ 42.83(c).

  17. 9 FAM § 42.83 PN5.1 (Mar. 28, 2008).

  18. See Pub. L. No. 107-208, 116 Stat. 927 (Aug. 6, 2002), published on AILA InfoNet at Doc. No. 02080740 (posted Aug. 7, 2002). See also INS Memoranda, J. Williams, “The Child Status Protection Act” (Sept. 20, 2002), published on AILA InfoNet at Doc. No. 02092732 (posted Sept. 27, 2002), and “The Child Status Protection Act—Memorandum Number 2” (Feb. 14, 2003), published on AILA InfoNet at Doc. No. 03031040 (posted Mar. 10, 2003); USCIS Memorandum, M. Aytes, “Clarification of Aging-Out Provisions as They Affect Preference Relatives and Immediate Family Members Under the Child Status Protection Act Section 6 and Form I-539 Adjudication for V Status” (June 14, 2006), published on AILA InfoNet at Doc. No. 06062870 (posted June 28, 2006). See also AILF Practice Advisory, M. Kenney, “2006 Update on the Child Status Protection Act: New Administrative Interpretations” (Sept. 26, 2006), published on AILA InfoNet at Doc. No. 06090662 (posted Sept. 26, 2006).

  19. See §8 of CSPA.

  20. CSPA § 3; 8 U.S.C. §§ 1153(h)(1) and (2).

  21. “Revised Guidance for the CSPA” (April 30, 2008), supra; “Child Status Protection Act: ALDAC 1” (August 26, 2002), http://travel.state.gov/visa/laws/telegrams/telegrams_1429.html.

  22. 8 C.F.R. § 245(b) (listing categories of “restricted” foreign nationals).

  23. 8 C.F.R. § 245.1(b)(3). This regulatory requirement is based on the statutory requirement that the applicant must have been “inspected and admitted or paroled.” INA § 245(a). To be “inspected,” a noncitizen must give the DHS officer a “full and fair opportunity” to conduct the inspection. So a person who enters based on an intentional false claim to U.S. citizenship has not been inspected. Ramsey v. INS, 14 F.3d 206 (4th Cir. 1994). In contrast, a passenger in a car has been inspected even if the officer asks her no questions, she had no visa, and the car was waved in. Matter of Quilantan, 25 I. & N. Dec. 285 (BIA 2010). The term “admission,” in turn, is defined as “the lawful entry of the alien into the U.S. after inspection and authorization by an immigration officer.” INA § 101(a)(13)(A). To be admitted, the entry needs to be procedurally regular, but the person needn’t be substantively eligible or admitted in a particular status. Matter of Quilantan, supra. But see Matter of Areguillin, 17 I. & N. Dec. 308 (BIA 1980) (the burden of proving admission is on the foreign national). A person who gains entry by fraud or misrepresentation has still been inspected. Id. (dicta).

  24. 8 C.F.R. § 245.1(b)(4).

  25. “Through no fault of [the applicant] or for technical reasons” is narrowly defined as: (1) inaction by another, designated by regulation to act, if the inaction is acknowledged by that individual or organization (e.g., inaction by an F-1 student’s designated school official); (2) a technical violation resulting from DHS inaction on an alien’s timely-filed application (e.g., an application for extension of nonimmigrant status); and (3) a technical violation caused by physical inability to request an extension of nonimmigrant status (a doctor’s note is required).

  26. 8 C.F.R. § 245.1 defines “lawful immigration status” to include LPR status, unexpired lawful nonimmigrant status, refugee or asylee status, or parole status. A prior pending I-485 does not constitute “lawful immigration status.” Chaudhry v. Holder, ___ (7th Cir. 2013).

  27. DHS takes the position that “entry” means a person’s first entry into the U.S. See letter of R. Michael Miller, INS Deputy Assistant Commissioner, Adjudications, Jan. 8, 1990, reprinted at 67 Interpreter Releases 151 (Jan. 29, 1990).

  28. 8 C.F.R. § 245.1(b)(6).

  29. 8 C.F.R. § 245.1(b)(8).

  30. INA § 201(a)(1).

  31. 9 FAM 302.9-4(B)(3)(g)(2)(a) (June 24 2019).

  32. 9 FAM 302.9-4(B)(3)(g)(2)(b) (June 24 2019).

  33. AFM chs. 10.3(j), 23.5(p), added by USCIS Policy Memorandum, Adjudication of Adjustment of Status for Individuals Admitted to the United States under the Visa Waiver Program, PM-602-0093 (Nov. 14, 2013). 9 FAM 302.9-4(B)(3)(g)(2)(a) (June 24, 2013).

  34. For the immediate relative of a U.S. citizen, overstay does not render them ineligible for adjustment, as explained above.

  35. 8 C.F.R. § 245.1(b)(1).

  36. 8 C.F.R. § 245.1(b)(2).

  37. 8 C.F.R. § 245.1(b)(9).

  38. INA § 245(i).

  39. See Memo from Robert L. Bach, INS Exec. Assoc. Comm’r, Policy and Programs, Apr. 14, 1998 (HQ 70/23.1-P, HQ 70/8-P).

  40. INA § 245(c)(2), (c)(7), or (c)(8).

  41. USCIS Memorandum, D. Neufeld, “Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act” (July 14, 2008), published on AILA InfoNet at Doc. No. 08073061 (posted July 30, 2008).

  42. USCIS Memorandum, D. Neufeld, “Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act” (July 14, 2008), published on AILA InfoNet at Doc. No. 08073061 (posted July 30, 2008).

  43. 8 C.F.R. § 245.1(c)(2).

  44. 8 C.F.R. § 245.1(c)(5).

  45. 8 C.F.R. § 245.1(c)(8).

  46. 7 USCIS-PM B(7)(F). See Matter of Sesay, 25 I. & N. Dec. 431 (2011); Matter of Dixon, 16 I. & N. Dec. 355 (BIA 1977); Matter of Blair, 14 I. & N. Dec. 153 (INS 1972). The marriage upon which the foreign national obtained K nonimmigrant status must have been bona fide, even if it was terminated, in order to adjust status. See Lutwak v. United States, 344 U.S. 604 (1953); Matter of Laureano, 19 I. & N. Dec. 1 (BIA 1983). If the evidence would permit a reasonable fact finder to conclude that the marriage was not bona fide, adjustment would properly be denied.

  47. INA §212(a)(4) (public charge ground of inadmissibility). See also USCIS Fact Sheet, “Public Charge” (Oct. 20, 2009), published on AILA InfoNet at Doc.

    No. 09102970.

  48. INA § 245(a).

  49. See Ka Fung Chan v. INS, 634 F.2d 248 (5th Cir. 1981).

  50. 7 USCIS-PM A(9)(B)(2). See Matter of Arai, 13 I. & N. Dec. 494 (BIA 1970); Matter of Lam, 16 I. & N. Dec. 432 (BIA 1978).

  51. 7 USCIS-PM A(9)(B)(2).

  52. USCIS, Direct Filing Addresses for Form I-485, Application to Register Permanent Residence or Adjust Status (Dec. 20, 2018).

  53. USCIS, Workload Transfer from Service Centers to Field Operations (Oct. 12, 2012), AILA Infonet Doc. No. 12100148.

  54. USCIS asks FBI to conduct background checks for adjustment applicants. FBI has committed to completing the checks within 180 days. If FBI fails to conclude the check within that period, then USCIS may approve a case despite the uncompleted check. Rescission of LPR status would be appropriate if later the completed FBI check shows that the applicant was ineligible for the benefit. Michael Aytes, Assoc. Dir. Domestic Ops., USCIS, Revised National Security Adjudication and Reporting Requirements, Feb. 4, 2008.

  55. 8 USCIS-PM B.

  56. Id.; Resources on Revised I-693 Medical Exam Policy, AILA Infonet Doc. No. 14053045 (posted May 30, 2014); Form I-485 Instructions at 12 (July 15, 2019).

  57. 8 C.F.R. § 245.5.

  58. Form I-693 Instructions at 8 (July 15, 2019).

  59. I-485 Instructions at 4 (Oct. 5, 2015).

  60. 7 USCIS-PM A(4).

  61. USCIS Fee Schedule, 81 Fed. Reg. 73292 (Oct. 24, 2016) (to be codified at 8 C.F.R. § 103.7).

  62. If you file a Form I-485 and pay the filing fee, there is no additional fee for a Form I-765, Application for Employment Authorization Document, or Form I-131, Application for Travel Document. I-765 Instructions at 10 (Mar. 11, 2016).

  63. The USCIS National Benefits Center does not require separate Forms G-28 for the I-485, I-765, and I-131. A “single G-28 for each applicant … within the filing package is sufficient…. [T]here should be one G-28 for the … applicant on the I-485, I-765, and I-131.”

  64. Form I-485 Instructions at 10 (Mar. 10, 2021); 7 USCIS-PM A(4)(A)(5).

  65. 7 USCIS-PM A(4)(A)(8).

  66. Except for members of special classes described in the I-485 supplement form, no police clearance is required. See Form I-485 Instructions at 3 (rev. Jan. 11, 2011).

  67. Form I-485 Instructons at 11 (Mar. 10, 2021).

  68. Adjustment of status applicants, i.e., applicants in the (c)(9) category, no longer need to file a copy of their Form I-94, Departure Record, or passport with the I-765. See I-765 Instructions at 27 (Aug. 25, 2020).

  69. Form I-131 Instructions at 8 (Apr. 24, 2019).

  70. This is a single consolidated biometrics appointment for both the adjustment application and the and concurrently filed I-765 application filed at the Chicago Lockbox facility. USCIS Consolidates Biometrics Appointment Letter Into One Notice For Adjustment Of Status Applicants, Feb. 15, 2008, http://www.aila.org/Content/default.aspx?docid=24654 .

  71. See 81 Fed. Reg. 82398 (Nov. 18, 2016).

  72. USCIS News Release, New USCIS Form Streamlines Process to Obtain a Work Authorization Document and Social Security Number Simultaneously (Oct. 2, 2017).

  73. 10 USICS-PM A.4(B), (C).

  74. USCIS Policy Alert, Employment Authorization for Certain Adjustment Applicants (June 9, 2021), updating 10 USCIS-PM B.4. This reinstates the policy of the Obama administration. USCIS Press Release, USCIS to Issue Two-Year Employment Authorization Documents (June 13, 2008), AILA InfoNet Doc. No. 08061362.

  75. “AILA/SCOPS Teleconference Agenda,” (Dec. 14, 2016), AILA InfoNet Doc. No. 16122204.

  76. 8 CFR 245.2(a)(4)(ii)(A).

  77. Warnings:

    (a) If your AOS application is denied while you are abroad, you will not be re-admitted with the AP.

    (b) A person may be denied entry if they fall within any applicable ground of inadmissibility. For more, see our article, Grounds of Inadmissibility under U.S. Immigration Law, at https://lawandborder.com/grounds-of-inadmissibility/.

    (c) If a person paroled into the U.S. is denied adjustment, they may be placed in removal proceedings before the Immigration Court, at which point they may renew their adjustment application, but they bear the burden of proving they are admissible to the U.S. This position is somewhat less favorable than that of a person who has been admitted rather than paroled into the U.S., in which case the government bears the burden of proving the person is subject to removal from the U.S. In addition, a person who has entered in AP and been placed in removal proceedings will have a custody determination made by the government (i.e., determining whether they will be released from custody on bond and, if so, what amount). Unlike a person who has been admitted, one who has entered with AP may not request that the Immigration Court reconsider the government’s bond determination. A person whose adjustment is likely to be denied should consider these disadvantages before using AP.

    (d) We recommend that a person using an AP not enter the U.S. through a port of entry using pre-flight inspection (i.e., a port of entry where the Department of Homeland Security inspector is stationed at an airport outside of the U.S.), such as the airport in Nassau (Bahamas), Shannon (Ireland), or any of the Canadian airports. The reason is that if entry is denied it may be more difficult to seek judicial review and otherwise advocate on your behalf than if you are stopped at an airport in the U.S.

  78. USCIS, USCIS Expands Partnership with Social Security Administration (Aug. 9, 2021).

  79. Social Security Administration, Enumeration Beyond Entry (EBE), RM 10205.700.

  80. 7 USCIS-PM A(5).

  81. 7 USCIS-PM A(5)(A)(1).

  82. CLINIC Affiliates for the National Benefits Center Tour, AILA Doc. No. 16102104 (May 24, 2016); NBC-AILA Questions and Answers, AILA Doc. No. 16080935 (May 6, 2016). See USCIS Memorandum, W. Yates, “Revised Interview Waiver Criteria for Form I-485 Application to Register Permanent Residence or Adjust Status” (Jan. 5, 2005), published on AILA InfoNet at Doc. No. 05030262 (posted Mar. 2, 2005). Currently, interview waiver-eligible Forms 1-485 at Service Centers are being sent to field offices for adjudication. These applications are sent to offices that have the capacity to adjudicate them and not necessarily to the office with jurisdiction over the applicant’s address. See American Immigration Lawyers Association-USCIS Field Operations Directorate Liaison Meeting Minutes (Oct. 9, 2014), AILA InfoNet Doc. No. 14101041).

  83. See “USCIS to Expand In-Person Interview Requirements for Certain Permanent Residency Applicants,” available at

    https://www.uscis.gov/news/news-releases/uscis-to-expand-in-person-interview-requirements-for-certain-permanent-residencyapplicants.

    See also USCIS Policy Alert, “Adjustment of Status Interview Guidelines and Waiver Criteria,” AILA Doc. No. 18051636.

  84. 8 C.F.R. § 245.2(a)(5).

  85. In some cases, it is possible to seek judicial review of USCIS’ decision. In some cases, USCIS may place a person who has no valid immigration status in Immigration Court removal proceedings, and it may be possible to reapply for adjustment before the Immigration Judge.

  86. See USCIS Policy Memorandum, “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens,” (June 28, 2018), AILA InfoNet Doc. No. 18070539; USCIS to Continue Implementing New Policy Memorandum on Notices to Appear,” (Nov. 8, 2018), AILA InfoNet Doc. No. 18110833.

  87. See, e.g., INA §240A(b), 8 CFR §1245.2(a)(1). But see 71 Fed. Reg. 27585 (granting USCIS jurisdiction over AOS applications generally of arriving noncitizens in removal proceedings); USCIS Memorandum, M. Aytes, “Aytes Memo on Adjustment by Arriving Aliens in Removal Proceedings,” (Jan. 12, 2007), AILA InfoNet Doc. No. 07030661; and AIC Practice Advisory, M. Kenney, “USCIS Adjustment of Status of ‘Arriving Aliens’ with an Unexecuted Final Order of Removal,” available at www.americanimmigrationcouncil.org/practice_advisory/arriving-aliens-and-adjustment-status.

  88. INA § 217(b); 8 C.F.R. § 217.4(b); AFM chs. 10.3(j), 23.5(p), added by USCIS Policy Memorandum, Adjudication of Adjustment of Status for Individuals Admitted to the United States under the Visa Waiver Program, PM-602-0093 (Nov. 14, 2013). 9 FAM 302.9-4(B)(3)(g)(2)(a) (June 24, 2013).

  89. 8 C.F.R. § 103.2(b)(9).

  90. AFM ch. 15.1(b)(2). Such requests are considered to be for good cause when the attorney or other representative has notified the local office that he or she is unable to appear at the scheduled date and time because of circumstances beyond his or her control, including but not limited to, scheduling conflicts resulting from a requirement that the attorney or other representative appear in court, previously planned travel, and any situation where two interviews of clients represented by the same attorney or representative are scheduled at the same time.

  91. AFM ch. 15.1(b)(2).

  92. AFM Chapter 15.1(d)(2).

  93. 8 C.F.R. § 211.1(b)

  94. 8 C.F.R. § 235.2.

  95. See, e.g., Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996) (five-year statute of limitations proscribing untimely rescission of LPR status barred INS from deporting on the basis that adjustment was obtained through sham marriage). But see INA §246(a).

  96. AFM 40.9.2(b)(3)(E).

  97. AFM 23.2(j).

  98. Memo from Michael D. Cronin, Acting Assoc. Comm’r, Office of Programs, “AFM Update: Revision of Mar. 14, 2000 Dual Intent Memo,” File No. HQADJ 70/2.8.6, 2.8.12, 10.18 (Amended Version May 25, 2000).

  99. This will also insulate the employer from any claim that the employer has violated the “required wage” obligation or other obligations imposed on H-1B employers.

  100. Matter of Hosseinpour, 15 I. & N. Dec. 191, 192 (BIA 1975) (Where a nonimmigrant indicates a desire to remain in the U.S. permanently, by filing for adjustment of status under INA § 245, this action in itself, does not constitute a failure to maintain status.)

  101. ICE, F and M Student Record Termination Reasons in SEVIS (May 2006).

  102. TSC Clarifies Responses to Question 4(e) of the Feb. 11, 2008 Q&A, AILA Doc. No. 08061163; AILA Student and Scholars Committee, Top 25 Things That Every Immigration Practitioner Should Know About International Students and Scholars (F-1, M-1, and J-1), Sept. 10, 2009, AILA Infonet Doc. No. 09091065.

  103. Pub. L. No. 106-313, 114 Stat. 1251 (relevant portions codified at INA §§204(j) and 212(a)(5)(A)(iv)).

  104. USCIS Memorandum, W. Yates, “Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Pub. L. No. 106-313)” (May 12, 2005), published on AILA InfoNet at Doc. No. 05051810 (posted May 18, 2005). According to this guidance, extensions requested under the “one-time protection” may be for a period up to three-years and may be for more than one extension. See also USCIS Memorandum, D. Neufeld, “Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)…” (May 30, 2008), published on AILA InfoNet at Doc. No. 08060560 (posted June 5, 2008).

  105. See INA §§204(j), 212(a)(5)(A)(iv). No offer of employment is required for EB-1, I-140 petitions for aliens of extraordinary ability; applicants in this category already have the flexibility to change jobs that AC21 gave to applicants in other employment-based categories, once their adjustment applications have been pending for 180 days or more.

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