Frequently asked questions Adjustment of status

Transcription

1 Frequently asked questions Adjustment of status 1. What are EAD and advance parole documents? The employment authorization document (EAD) and advance parole (AP) document are the interim benefits available to adjustment of status (AOS) applicants while their I-485 application is pending at U.S. Citizenship and Immigration Services (USCIS). While the I-485 remains pending, the EAD allows an I-485 applicant to work, while the AP document enables an applicant to travel abroad and return to the US. These documents are usually issued with a validity of 12 months and are renewable until the I-485 application is approved. 2. May I travel outside the US while my application for adjustment of status is pending? Yes, but you will need to have certain documents to make sure that your adjustment of status case is not deemed abandoned. As part of the adjustment of status application package, you may file for an advance parole document. This document must be issued to you before you depart the US in order to avoid abandoning your AOS application. You may also depart the US during the AOS process if you are maintaining valid L-1/L-2 or H-1B/H-4 visa status, but note that you will need to have an unexpired visa in your passport to be able to return to the US. In most cases, it is a good idea to maintain your L or H status and obtain an advance parole document. Your employer will advise us whether it wishes to support you having both documents. In either case, it is critical that you ensure that you and your family have either valid advance parole documents or valid L/H visa stamps in your passport before making any travel plans. If you have both documents, you and your accompanying family (if any) should present only the valid L/H visa stamps in your passports upon your return to the US, but you should also carry the original advance parole document in case the immigration officer inquires about it at the port of entry in the US. 3. May I travel outside the US before I receive the advance parole? You may travel outside the US only if you possess either a valid advance parole document or a valid H-/L- visa. If you do not possess at least one of these documents, your I-485 will be deemed abandoned when you depart the US. 4. Can my spouse and children apply for adjustment of status with me? Yes, your spouse and children less than 21 years of age can file an I-485 application for adjustment of status as derivative beneficiaries based on the I-140 petition filed on your behalf. Separate applications must be submitted for each family member filing for adjustment of status. An applicant for adjustment of status must be physically present in the US in order to be eligible to file. If your spouse and children are overseas, we strongly recommend that they re-enter the US as soon as possible to file their I-495 application. 1

2 5. I am currently assigned to a project overseas. Am I still eligible to apply for adjustment of status? The adjustment of status application is available only for applicants who are physically present in the United States. It is safest to remain in the US until the I-485 receipt notice is issued or for at least one week after the I-485 is filed. 6. My spouse and/or child is/are currently overseas. What can I do if I want him/her to get a green card? They should enter or re-enter the US so that they may also file an I-485. To avoid potential complications in the future, it is strongly recommended that all family members return to the US in time to file the I-485. If it is impossible for them to travel to the US in the immediate future, they may be able to file an I-485 separately at a later date if you priority date remains current on the visa bulletin. We can also possibly request consular processing depending on the visa number availability. If your priority date retrogresses, then your spouse and/or children will NOT be eligible to file the I-485 or obtain the green card via consular processing until he priority date becomes current again. 7. Do I need to complete the Form G325A for my children? Is there an age requirement for applicants to complete/file the Form G325A? Each of your accompanying family members filing the I-485 application must also complete the Form G325A Biographical Information. The G325A is required for all I-485 applicants who are 14 to 79 years of age. 8. My child will turn 21 after my application of adjustment of status is filed. Will he or she still be eligible for a green card? In general, children may lose their eligibility to obtain permanent residence as your dependents on their 21st birthday, but provisions of the Child Status Protection Act (CSPA) have added greater flexibility to prevent your children from aging out. It is generally safest to file the I-485 before the child turns 21 if at all possible. If you have a child who is close to turning 21, or who has turned 21 recently, please alert our office to that we may assess his or her eligibility. The best way to alert us is to include a written note with the courier package of documents that you send us. 9. I am unable to obtain a long-form birth certificate from my country. What should I do? Each country has its own requirements and procedures for obtaining birth certificates or secondary evidence in lieu of birth certificates that are acceptable to the USCIS. Please refer to your country information at the U.S. Department of State website at this link: state.gov/visa/reciprocity/index.htm. 2

3 Unobtainable or incomplete birth certificates If your birth was not recorded, please submit a no record of birth registration letter from the relevant authorities along with secondary evidence (see below). If your name is not mentioned in the birth certificate, submit the certificate along with secondary evidence. If any details are missing in the birth certificate or if there is a discrepancy regarding your date of birth or name, submit the certificate along with secondary evidence. Secondary evidence of birth In most cases, the USCIS will accept the documents listed below as secondary evidence of birth. It is best to submit as many of the following as possible. The oldest documents are usually given the most weight, as they were issued closest to the time of your birth. Baptismal certificate Adoption decree School record Hospital/medical records Notarized affidavit from a close relative (a parent, a close relative, a neighbor or friend who was present at the time of your birth and who was at least 10 years old when you were born). The person making this affidavit must state how he/she knows your family and how he/she knows the facts of your birth. Please ensure that these document(s) also include your name, date and place of birth; names of both parents; and the seal of issuing office. 10. My parents full names are not on the birth certificate. Will this be sufficient? Your birth certificate should be accompanied by secondary evidence in the form of a notarized affidavit from your parents giving details of their full names and the reason for their full name not being mentioned on the birth certificate. 11. Can you provide us a sample affidavit to be provided in lieu of a birth certificate? There is no prescribed format for such affidavits. Your relatives should contact the local notary public or oath commissioner in their country of residence for executing an affidavit. 12. Do I need to provide original or certified birth/marriage certificates? No, you should provide us only with photocopies. They need not be certified unless accompanied by a translation, in which case the translation should be from a professional translation service and the translation itself should be certified by the translator. You should, however, maintain ready access to the original or government-certified copies in the event that they are requested by the USCIS. 3

4 13. What is an alien number? How do I know where it is? The alien number is an exclusive identifier assigned to certain aliens (foreign nationals) in the US. You can find this number in your EAD card, if ever issued, or you may also find it in the receipt or approval notices of your I-140 petition, if any. Not all foreign nationals will have an alien number. 14. What is the I-94 card? Is it in my passport? An I-94 card is the record of your arrival and departure and is always attached inside your passport. On each arrival to the US, you will be issued a new I-94 card. The I-94 card is annotated with the appropriate non-immigrant classification (e.g., L-1, H-1B) and the period within which you are permitted to remain in the US. Whenever you depart the US, your existing I-94 card in your passport will be collected by the airline when you check-in, and the I-94 cards will be forwarded to the Department of Homeland Security. At the time when your I-94 card is being issued to you at the airport, please verify that the officer endorses your I-94 card with the correct non-immigrant classification (e.g., H-1B or L-1A). Also note the date marked in Admitted until ; if this date is earlier than the visa expiration date, kindly verify with the officer that the date was not marked in error before stepping away from the counter. If you have applied for an extension or change of status, you may also have an I-94 card that is attached to the bottom of the I-797 approval notice. Please forward all I-94 cards to us. 15. Do I provide you with the details of my most recent I-94 or the I-94 from my first entry to the US? Please provide us with copies of all your I-94 cards. The most important one is the most recent one. As the information from the I-94s issued at the port of entry is often not captured well by photocopiers, please be sure that the date and city of entry are clearly identified. If you are a Canadian citizen with a multiple-entry I-94 and you were not issued a new I-94 at your most recent entry, please also provide the details of the date and place where you last entered the US. 16. What are the various processing steps at the USCIS and/or communication expected from the USCIS after filing an I-495 application? After submission, receipt notices are normally issued in four to five weeks; however, due to the enormous volume of filings expected in July, all processing times are likely to take longer. Other steps on the process include: Application Support Center (ASC) Appointment Notice. To complete biometrics process as part of your I-485 application processing. This will require you to attend your local ASC to provide your fingerprints for security/background checks, together with photographs and signatures. The appointment notice will provide the address and appointment date/time. If you are unable to make the appointment, it is critical that you notify us so that we may take steps to prevent your application from being deemed abandoned. 4

5 Approval of I-131 application and receipt of advance parole (AP) documents, normally in 90 days.* The AP documents are normally mailed to our office and will be mailed to you. This document will allow you to travel and return to the US while your I-485 application is pending. Note that you must return to the US prior to the expiration date on the advance parole document. Approval of I-765 application and receipt of employment authorization card (EAD), normally in 90 days.* The EAD card will be mailed directly to your home address. Please provide a copy to our office when you receive the card. The EAD card will allow you to work in the US while your I-485 application is pending and so long as the EAD card is unexpired. Interview appointment. It is fairly rare for employment-based applicants to be scheduled for an in-person interview at the local USCIS office, but it is possible. If you are scheduled for an interview, you will receive a notice stating the date, time and location of the interview. If you are unable to make the appointment, it is critical that you notify us so that we may take steps to prevent your application from being deemed abandoned. Adjudication of I-485 application. Given the expected enormous increase in applications starting in July, and the anticipated retrogression of priority dates, it is truly impossible to predict when the I-485 will be adjudicated. In some case it may take a few months, and in others it may take several years. Issuance of permanent resident card. Upon approval of the I-485, the USCIS will mail an approval notice and order production of permanent resident card (PR card or green card). Production of a green card can sometimes take over 30 days. When your PR card is ready, it will be mailed directly to your home address. Please provide a copy to our office and your company s HR representative. *Processing times of the I-131 and I-765 applications are based on current processing time figures. The processing times of your applications may be longer and cannot be predicted given the expected increase in applications in July. 17. What happens at the biometrics appointment? What documents do I need to attend the appointment? At this appointment, the USCIS will take your photograph, fingerprints and signatures required to process the I-485 application and conduct mandatory background checks. You should attend the appointment with two government-issued photo IDS, such as passport and driver s license. Please follow the instructions on the biometrics appointment notice. 18. Can I postpone or reschedule biometrics appointment? We recommend that you try to attend as scheduled because there is no guarantee when the next appointment will be available, and your I-485 may be deemed abandoned if you fail to attend the appointment. In most cases, the biometrics appointment notice provides the information regarding rescheduling of the appointment. If there are no instructions, please us a copy of the notice, and we will review and advise you of the next steps. 5

6 19. What do I do if I have a criminal record/drunk-driving arrest or conviction? Let us know ASAP and gather all documentation relating to any arrest or conviction (including DUI). If the arrest occurred in the US, you will need to obtain a certified copy of the court docket sheet. 20. Do I need to inform you of traffic violations? No, there is no need to inform us of common traffic citations, such as speeding, running a red light or illegal change of lanes. Please notify us of these violations only if you failed to pay a required fine or appear at a required court hearing resulting in the citation being converted in a more serious violation or in the issuance of a bench warrant. Note that you should always inform us if you have been arrested for DUI. 21. How can I check the status of my pending applications? You can check the status of your pending application(s) and the current processing dates at the USCIS website at this link: You will need your application receipt numbers to check the online status. 22. How can I receive status update s from the USCIS on my pending applications? You can register at the USCIS website to receive notifications for updates on your pending applications at this link: contexttype=cu_en 23. I called USCIS for a status update and was advised that my I-485 is pending receipt of background check results. How long does it normally take to receive the background check results? Since the background/security checks are conducted by several agencies other than the USCIS, the USCIS or our office are not in a position to speculate on the timeframe regarding the receipt of results. In our experience, some cases can take several months or even years to receive their background check results. 24. What should I do to change my address on already filed or pending I-485, I-131 and I-765 applications? You should complete and submit the online AR-11 form on the USCIS website to update your new address. This online AR-11 form needs to be submitted on the USCIS website every time you change residence and until such time that you become a US citizen. You and your accompanying family members will also need to change the address for each of your pending I-485, I-131 and I-765 applications. Please follow this link for details on this process: Please also us your new home address and phone number. 6

7 25. I previously held J-1/J-2 status in the US. How does this affect my AOS processing? Some J-1/J-2 status holders are subject to a two-year home residency requirement, which requires them return to their home country for two years after completion of the exchange program they attended in the US. The regulations do not allow such J-1/J-2 holders to file I-485 application unless they comply with the two-year home residency requirement or satisfy the USCIS by obtaining a J-1/J-2 waiver from the Department of State, which sometimes can take well over 12 months to receive. Please provide our office with copies of your J-1/J-2 visas and IAP-66 (or DS-2019) form and we will review and advise you of the next course of action. 26. My passport has expired. Do I need to renew/extend passport to file a I-485 application? It is preferable to have a valid passport at the time of filing the I-485, but it is not absolutely essential, and you should not hold up processing while you wait to extend your passport. The USCIS may issue a request for evidence asking for copies of a valid passport if they are not submitted upfront. Please provide color copies of your expired passport biographic page with current visas for the filing of I-485 application. You should, however, make an application for passport renewal ASAP. 27. My spouse has an I-140 petition that has been approved. Can I file two simultaneous I-485s? The multiple filing of I-485 applications is not encouraged and could actually delay the eventual approval. 28. What is the difference between consular processing and adjustment of status? You may obtain lawful permanent residence by either filing an I-485 (adjustment of status) or applying for an immigrant visa from a US consulate abroad (consular process). There are distinct advantages to each method. 1. Adjustment of status An application for adjustment of status is wholly adjudicated by the USCIS from within the US. Applicants may wish to adjust their status because of the benefit from provisions that permit family members of the primary beneficiary to obtain an EAD while the I-485 remains pending. Furthermore, in some cases, applicants for adjustment of status may be eligible to change the underlying employer of the I-140 petition, if the I-485 application has been pending for more than 180 days. The ability to change employers midstream could be beneficial in certain cases where there is an unanticipated change of corporate ownership or structure. Finally, applicants in certain preference classes and from certain countries may be subject to visa retrogression, and adjusting status might be the safest option to ensure the applicant is permitted to continue employment in the US while processing is completed. The primary disadvantage of seeking to adjust status is that USCIS application processing, including security clearance procedures, may experience significant fluctuations in processing times. In a very limited number of cases, the application may be delayed for months, or even years, pending the outcome of these mandatory security clearance checks. 7

8 2. Consular process With consular processing, once the USCIS approves the I-140 employment based petition, the petition approval is forwarded to the U.S. National Visa Center (NVC), which is operated by the U.S. Department of State. The NVC will collect immigrant visa fees and biographical information about the primary beneficiary and all accompanying family members. Depending on the consulate, applicants may also be required to submit original or government-certified birth certificates, marriage certificates, divorce decrees and custody agreements, as well as police certificates and other vital documents. Once the NVC has collected all of the required information and documents, the file will be forwarded to the US consulate for interview scheduling. Normally, the applicant will be required to complete processing in the country of his or her citizenship. Once the interview is scheduled, the applicants will be required to complete medical exams and attend an interview. If not previously provided to the NVC, applicants will be required to provide original documents including birth and marriage certificates and police clearance certificates at the interview. Immigrant visas are generally issued within a few days of the interview. Please note that specific visa processing practices may vary between consulates. Once the immigrant visas are issued, the applicants must enter the US during the validity of the immigrant visa, normally six months from the date of issuance. Upon subsequent entry, the U.S. Customs and Border Protection (CBP) offer will inspect the immigrant visas and other related documents, and barring any unforeseen circumstances, the CBP officer will admit the individuals to the US in US permanent resident status with temporary evidence of status valid for six months. Documentary evidence of permanent status (green cards) will be sent to the individual by mail within one to six months. While awaiting the consular interview, the applicant must maintain valid non-immigrant status, such as H-1B or L-1B, in order to be able to work in the US. Also, unlike with the adjustment of status process, applicants completing consular processing must continue to intend to be employed in a job that is identical to the job described in the I-140 petition. On the other hand, although applicants for consular processing are also required to complete security clearance checks, the longest delays using consular processing are rarely as lengthy compared with the longest delays using adjustment of status. Finally, please recall that whether you are applying by adjustment of status or consular processing, your application cannot be approved unless a visa number is available. 29. What happens if the visa bulletin retrogresses? If your I-485 application is already pending when priority dates retrogress, it will remain pending but ineligible for approval until your priority date becomes current again. If this happens, you will remain eligible to renew your EAD and AP. 30. What if my PERM or ETA 750 is still pending? If your PERM or ETA 750 is not yet approved, you are not eligible to file the I-140 and I-485. We recommend that you collect all of the required documents and information, such as birth and marriage certificates, so that if your labor certification should be approved, you will be prepared to send in all of your documents and information on short notice. Please be aware that we will not be processing I-485s until the labor certification is actually approved. 8

9 31. How will my spouse s current F-1 status affect AOS processing? A person who enters the US in F-1 status or changes status to F-1 is required to have nonimmigrant intent. Applying for the I-485 can be seen as inconsistent with non-immigrant intent. Generally, provided that at least 60 days have passed since the time of entering the US in F-1 status or changing status to F-1, this does not seem to be an issue. However, when people file the I-485 from F-1 status, they must NOT depart the US until they receive the advance parole travel document and must not use the F-1 visa to travel. If the person is working on Optional Practical Training (OPT), it is strongly recommended that they obtain a new EAD card based on the I-485. Please alert us to any issues regarding F-1 status in writing when submitting your package of I-485 documents to our office. 9