Employment Based Green Card Application
Q: What is Adjustment of Status?
Adjustment of Status is the process which is undertaken by an alien, residing in the US and fulfilling certain criteria, who wishes to “adjust” his or her non-immigrant status to immigrant status (permanent resident status).
An alien can generally petition for permanent residency by filing I-485 adjustment of status application, on the basis of employment (through Form I-140 in either of the EB-1, EB-2, and EB-3 categories). Both the forms can be filed simultaneously.
Q: Can I Travel while my Adjustment of Status is pending?
Yes. But you will require an Advanced Parole (AP) which is basically a travel document, for traveling out of the country for this purpose. Traveling without getting an Advanced Parole can be considered as abandoning the application and terminate the process, unless you are on certain special status like H or L.
Q: Does traveling under Advanced Parole affect my status?
Not directly. When you re-enter the US, you are considered to be “paroled” in and you will continue to hold whatever status is valid i.e. if your H1B is still valid then you will continue to be in H1B and if you were working with EAD, the same applies.
However, if your Advanced Parole (AP) expired while you are abroad, you cannot apply for a new AP from outside US and your Adjustment of Status application will be considered abandoned and terminated.
Additionally, changing employers immediately after being paroled in can mean you will lose your H1B or L1 Status. Therefore we suggest, change employers before traveling abroad, if you wish to and retain your H1B/L1 status.
Q: What is my Non-Immigrant Status while my adjustment of status is pending? While your current status is valid, you continue to live in the US in that status. For example, you are in H-1B status and it is valid for a few more months. In that case you will be in H1B status until it expires. After that if you do not renew your H1B status, it will automatically change to I-485 pending status.
Interestingly, if you have recently traveled with the Advanced Parole document and are extending your status with the same employer after being paroled in, on approval of the extension, your status will change to H-1 or L-1 status and remain so as long as it is valid. On expiry, if your Adjustment of Status case is pending, it will again switch back to I-485 pending status.
Q: Do I have to renew my current non-immigrant status while my case is pending? It’s not necessary legally, as your status will be automatically switching to I-485 pending status. However, we recommend that an alien maintain a valid and separate legal status which will allow you to stay in the US, if by any reason your adjustment application is denied suddenly. Otherwise you may find yourself an Illegal Immigrant.
In order maintain H-1 or L-1 status, you will need to continue to extend your H-1 or L-1 status and always re-enter the US under those status, after traveling abroad. Also, in case you are re-entering US with an Advanced Parole, you should NOT change employer as an “parolee”, as that will terminate your non-immigrant status.
Q: Can I travel back to my home country and apply for a work visa while my adjustment of status is pending?
Yes, you are also allowed to travel back to your home country with an Advanced Parole, apply for an H1B/L1 Visa there and then re-enter the US on the H-1/L-1 status, as long as the this is done within the case pending period. Even if the H1B is denied, you can re-enter the US on the basis of your Advanced Parole as your pending status allows you to stay legally.
Q: May I work while my adjustment is pending?
A: Yes. You can work under your current non-immigrant status as long as it is valid. However, unless you are an H1B or L1, your non-immigrant status cannot be extended, once you have applied for an I-485. In that case, you can apply for the Employment Authorization Document (EAD). EADs’ are valid for one year and you will be required to apply for a fresh one every year before the old one expires.
Q: I have an EAD but I have never used it to work. Will this affect my Adjustment of Status case?
No. This will not affect your case. Actually, we recommend an H1/L1 holder to avoid using EAD and maintain their non-immigrant status. But in the same it is advisable to actually obtain and EAD and keep it handy, in case their non-immigrant status is terminated due to some reason.
Q: Does obtaining an EAD affect my status?
Yes, but only if you are using the EAD to work. Simply obtaining the EAD does not affect your status. As and when you start to work using the EAD, your H-1 or L-1 status is switched to I-485 pending status.
NOTE: In case your old EAD expires before your new EAD has been granted, you are legally NOT allowed to work during this intermittent period. Therefore, we advice aliens working under EAD to make sure they apply for new EAD in time to avoid such situation.
Q: Can I change my employer while my Adjustment of Status case is pending?
Yes, if you are applying through an EB category. The Portability Rule allows you to change the sponsoring employer as long as your case is pending with the condition that the new job falls under the same classification as the current job for which the petition was filed. This can be done only after 180 days have lapsed from either the filing of adjustment of status or the approval of the I-140 petition, whichever is later.
NOTE: The AC21 Portability Rules have not been implemented as law and the current proceedings are based on various USCIS memos. These interpretations can change when the AC21 rules finally implemented and any decision taken based on these memos can be considered null and void. Consult your attorney regarding this.
Q: I have recently re-entered the US using my Advanced Parole Document. Will changing employers affect my status?
Yes, if you have recently traveled abroad under Advanced Parole and change your employer immediately after re-entering US, this will automatically terminate your H-1 or L-1 non-immigrant status. While you can stay and work in the US using an EAD lawfully in this situation, it’s only valid while the I-485 is pending. If your I-485 application is denied for any reason, you are automatically without any legal status in US and will be required to leave. Contact your attorney for clarification in such cases.
Q: What if my new employer doesn’t sponsor my H1/L1 extension?
In case your new employer does not sponsor your H1 or L1 extension, you will lose your H1/L1 status once they are expired and be switch to I-485 Pending status. You can continue working with your new employer using your EAD. Just make sure you already obtain your EAD before your H1/L1 status expires to avoid any gap in status.
Q: My I-140 application has not been approved but 180 days passed since my I- 485 application was filed. Can I change my employer?
Yes, you can change your employer now. But, it is advisable that you wait for the I-140 approval. Specially, if you are using an EAD to work and do not have a valid L1 or H1 status, in which case your I-485 pending status is the only thing allowing you to stay in the US. Because, if the I-140 is not approved when you change your employer, and your previous employer withdraws the original I-140, your I-485 application may be considered abandoned and the process will be terminated and you will end up without a legal status. If you have valid H1/L1 status, it should not be a problem.
Q: Can I add more dependents while my application is in pending status?Yes. Even though Form I-140 has provisions for adding dependents, you can file I-485s for your spouse and children either along with your application or at any time before your case is adjudicated, as long as they are in US under a valid non-immigrant status. Note though, this applies only to dependents of employment based green card applicants.
There is an exception to this rule. If the dependent is on an exchange student visa (J1/J2) with a 2 year Home Residency Requirement, he or she cannot file I-485 until the tenure is complete or a waiver can be obtained.
Q: If I marry during the I-485 pending period, can my spouse apply for Adjustment of Status?If you are on a valid H1/L1 Visa and marry during the pending period, your spouse will first have to change his or her status to H4 or L2 and then apply for the Adjustment of Status within the pending period.
If your spouse is already residing in the US then it is simple case of filing for change of status before applying for I-485.
If your spouse is residing abroad, then you will have to file Form I-824 Application for Action on Approved Application or Petition, either along with or after filing your adjustment of status petition. This will speed up your dependents immigration to US in case of your application is approved.
Q: If my child is born while my adjustment of status is pending, can I apply for his/her Adjustment of Status as well?If your child is born in the United States, he or she automatically becomes a US citizen. However, if your child is born abroad, see the process described in the answer above.