Adjustment of Status – Employment Based
Brief Overview of Adjustment of Status through Employment
One of the two common pathways to obtaining lawful permanent resident status (i.e. a green card) in the United States is through the approval of an employment-based immigrant petition (the other common pathway way is through a family-based immigrant petition). Most employment-based immigrant petitions require a sponsoring U.S. employer/petitioner, but a few employment-based immigrant petitions may be self-petitioned (such as an EB-1 Extraordinary Ability petition). The requirements for the employment-based immigrant petition vary upon which employment based preference category the petition is being filed under.
However, the filing and subsequent approval of the employment-based immigrant petition does not, in and of itself, grant lawful permanent resident status to the foreign national. After a foreign national has an employment-based petition approved on their behalf, and if/when their priority date is current, they can file for adjustment of status from within the United States or can pursue their lawful permanent resident status from outside the United States through Immigrant Visa Processing (IVP). In some cases, the adjustment of status paperwork can be filed concurrently with the employment-based immigrant petition.
Requirements for Employment-Based Adjustment of Status
The main requirements for a foreign national to apply for adjustment of status (green card) from within the U.S. based on their approved employment-based immigrant petition are (1) to be physically present in the U.S. (2) to have last entered the U.S. lawfully (after inspection and admission by a U.S. immigration official), and (3) to be admissible to the United States (a foreign national’s eligibility may be effected if the foreign national has a previous criminal or immigration history that may render them inadmissible to the United States, or if they have failed to maintain their status in the U.S. or worked without authorization [unless they can qualify under INA §245(k)].
If the foreign national is not physically present in the U.S., or did not last enter the U.S. lawfully, they may be able to apply for lawful permanent resident status through Immigrant Visa Processing (IVP). If the foreign national is inadmissible to the U.S. as a result of previous criminal or immigration violations, they may be able to apply for waiver(s) to waive those grounds of inadmissibility.
Applying for Employment-Based Adjustment of Status
Applying for Employment-Based Adjustment of Status requires submitting a comprehensive package to USCIS based on the employment relationship as well as the applicant’s eligibility for adjustment of status. The main form is:
Additional ancillary forms to be submitted include:
Lastly, to establish or preserve employment eligibility and travel privileges (especially if the foreign national will not continue to maintain their non-immigrant status), other forms that may be submitted include:
Document Requirements for Applying for Employment-Based Adjustment of Status
I-140 Approval Notice
The I-140 is the form that the U.S. employer (or the foreign national, depending on the applicable employment-based preference category) should have previously filed and subsequently received an approval notice. The purpose of the form is to establish the legitimacy of the employment offer, the foreign national’s qualifications for the position being offered, foreign national’s eligibility to satisfy the applicable statutory requirements, the U.S. employer’s ability to pay, etc. Additional information on the I-140 process can be found here. As mentioned previously, in some cases, adjustment of status paperwork can be filed concurrently with the employment-based immigrant petition.
The I-485 is the form that the foreign national must file to apply for adjustment of status within the U.S. The I-485 form inquires about an individual’s status in the U.S., any prior immigration or criminal problems, and any other issues that may cause an individual to be inadmissible to the U.S. or be ineligible to adjust status within the U.S.
One of the fundamental requirements to be eligible to adjust status is that foreign national last entered the U.S. lawfully (i.e. after inspection by U.S. immigration officials). Additionally, if the foreign national has failed to maintain their status, or has worked without authorization, they may not be eligible to adjust their status. However, there are a few exceptions to these rules, such as the one found under INA §245(k).
o The Form I-693 is used to determine whether the foreign national spouse is inadmissible to the United States on medical grounds.
o The medical examination must be completed by a USCIS approved civil surgeon. A list of USCIS approved civil surgeons can be found at www.uscis.gov.
o After the medical examination is completed, the civil surgeon will provide the foreign national spouse with a sealed envelope. The envelope must remain sealed when filed.
The I-765 can be filed concurrently with the adjustment of status paperwork to establish work employment eligibility while the adjustment of status paperwork is pending. Upon approval, the foreign national is issued an Employment Authorization Document (EAD), which is valid for any position with any employer, including for self-employment purposes. In most cases, the EAD is issued within 60-90 days after filing.
However, if the foreign national is maintaining his or her non-immigrant status after filing for adjustment of status, they are not required to file this form for work authorization. They may continue to work under their non-immigrant status.
The I-131 can also be filed concurrently with the adjustment of status paperwork to allow for international travel privileges while the adjustment of status application is pending. Upon approval, the foreign national is issued an Advance Parole Document, which is valid for multiple entries returning to the U.S. In most cases, the Advance Parole Document is issued within 60-90 days after filing.
• Caution: Once an application for adjustment of status has been filed, the applicant may not be able to depart the U.S. until advance parole is issued (in certain situations, if the applicant is an H or L non-immigrant who is concurrently maintaining their non-immigrant status, they may be able to depart the U.S. without facing adverse consequences). Should an applicant depart the U.S. while the application is pending, but before advance parole is issued, they may be considered to have abandoned their application to adjust status.
If the foreign national has any unlawful presence issues or concerns, travel outside of the U.S. is ill-advised even if you have an approved Advance Parole Document. If the foreign national is unsure whether they have any unlawful presence issues, they should thoroughly discuss the matter with an immigration attorney.
Please note that a failure to maintain status or being out of status is not the same as unlawful presence.
Expectations After Filing Employment-Based Adjustment of Status
After all of the paperwork is filed, the foreign national will receive Receipt Notices within 2-3 weeks of filing for each application filed (I-485, I-765 and/or I-131). The Receipt Notices will assign the foreign national an Alien # (if they do not have one already). The Receipt Notices are also important for following up with USCIS in the future on these matters and checking the case status online.
Approximately 2-3 weeks after the Receipt Notices are generated, USCIS will schedule the foreign national for a Biometrics Appointment at a local USCIS Field Office or an Application Support Center. At that appointment, the foreign national will have their picture and fingerprints taken so that the necessary security background checks can be completed.
Request for Evidence
If USCIS determines that the information/documentation submitted is inadequate to satisfy the applications requirements and further information is needed, they will issue a Request for Evidence (RFE). The Request for Evidence will specifically state the documents/information they are seeking and a timeline under which they need to be submitted (all requested information should be submitted at the same time). Failing to respond to the RFE may result in the denial of the application(s).
EAD/Advance Parole Documents
EAD and Advance Parole Documents, if applied for, are usually issued within 60-90 days after filing.
In most cases, USCIS will adjudicate the petition favorably without requesting an interview. However, in some cases, they may schedule an interview. If USCIS does schedule an interview, it is normally sent to the foreign national approximately 2-3 weeks after the Biometrics Appointment. The interview notice will list documents that need to be brought to the interview.
The Adjustment of Status Interview
Purpose of the Interview
If scheduled, the purpose of the interview is two-fold. The first purpose is to ensure that the employment relationship is legitimate, the foreign national has the necessary qualifications for the proffered position and meets the statutory requirements. The second purpose is to ensure that the foreign national does not have any past criminal or immigration problems that would prevent them from being eligible for a green card through the adjustment of status process, including, but not limited to, working without authorization or failing to maintain status.
During the Interview
Each case is different and brings unique facts and circumstances to be addressed at the interview. Foreign nationals with complex or distinctive issues may benefit from consulting with an attorney who can help prepare them for what to expect at the interview and even attend the interview with them in order to assist with any responses to questions of law.
Possible Outcomes of the Interview
The interview usually concludes with one of three possibilities:
o Ideally, the officer will end the interview by letting the foreign national know that they have been approved for a green card.
o At this time, if possible, the foreign national should ask the adjudicating officer to stamp their passport as proof of their lawful permanent resident status.
• Need Supervisory Review/Background Checks Not Cleared
o In some cases, the adjudicating officer might state that while everything looks good, the file needs supervisory review before approval and/or that they are still awaiting for background checks to clear.
o USCIS is likely to provide an update within 30-60 days after the interview.
• Issue w/Case
o In some cases, the adjudicating officer might feel that there is an issue with the case. They will not provide a decision at that time and will follow up within 30-60 days.
Lawful Permanent Residency
If the case is approved, the foreign national will receive lawful permanent residency and receive a “green card” valid for a period of ten years. In the future, the foreign national can apply for naturalization to become a U.S. citizen if they meet certain requirements. See Naturalization. If the employment-based immigrant petition is based on an EB-5, the foreign national will receive lawful permanent residency for a period of two years and must later apply to remove the conditions on their permanent resident status.
USCIS Adjudicator’s Field Manual Ch. 22 and Ch. 23
Revised by Nisha V. Fontaine, Esq. on February 18, 2012