Adjustment of Status is the most exciting process for most aliens because this is the last and final step in the process of obtaining a legal permanent resident status in the United States. This part of the process belongs not only to the applicant alien but also to his or her accompanying dependents such as spouse and unmarried children under the age of 21. The following are the frequently asked questions in adjustment cases.
Adjustment of Status is the most exciting process for most aliens because this is the last and final step in the process of obtaining a legal permanent resident status in the United States. This part of the process belongs not only to the applicant alien but also to his or her accompanying dependents such as spouse and unmarried children under the age of 21. The following are the frequently asked questions in adjustment cases:
1) How does an alien apply for adjustment of status? What is the filing fee?
The alien should submit forms I-485, I-765 and I-131. The last two forms are optional. I-765 is the application for employment permit, which will authorize the alien to work while waiting for the green card. I-131 is the advance parole document, which will allow the applicant to travel outside the United States while the adjustment of status is pending. Generally, the filing fee is $1,010, which includes a biometrics fee of 80. Applicants under 14 years of age and 79 years of age or older are not charged a biometric fee so the total fee is only $930. For applicants under 14 years of age, if filing with at least one parent, the fee is $600.
2) Maria entered the United States as student. She was in her second year of the master’s degree program when she found employment for EB-2 category. Does Maria lose her student or F-1 status upon applying for adjustment?
No. The filing of adjustment application does not terminate lawful non-immigrant status. If the EB-2 application is denied and the F status had expired at the time of denial, the alien would likely be unable to obtain another F-1 visa because of lack of non-immigrant intent. If the alien stopped attending school and did not maintain his or her F-1 status before filing for adjustment of status, his or her application will likely be denied.
3) When should the Employment Authorization Document (EAD) extension be filed?
U.S. Citizenship and Immigration Services accepts filing up to four months in advance of expiration. I suggest filing between three to four months in advance.
4) What happens if an adjustment applicant fails to extend his or her EAD and continues to work without EAD and without valid non-immigrant status after the filing of the adjustment application?
Unauthorized employment after the filing of the adjustment application can bar adjustment. USCIS will accumulate any unauthorized employment prior to the filing of the adjustment and unauthorized employment after the filing of the adjustment, and, if the total exceeds 180 days since the last entry to the U.S., the applicant will be considered to be not eligible to adjust.
5) What happens if the adjustment applicant does not work without authorization but fails to maintain any non-immigrant status after the filing of application for adjustment?
As long as the violation of status was less than 180 days after the last entry and before the filing of the adjustment application, the alien should be able to adjust without any problems.
6) Can the applicant for adjustment of status be a beneficiary of a non-immigrant visa petition filed by a different sponsor while the adjustment application is pending?
Yes, there is no requirement that the alien be employed by the sponsor on a permanent basis. The beneficiary can change employer once the petition is approved and the adjustment application has been pending 180 days.
7) Can a foreign national have more than one adjustment of status application pending at the same time? For example Mr. A was sponsored by General Electric as Chief Engineer and his I-140 was approved. Mr. H filed for adjustment of status which included his derivative beneficiary such as his wife, Mrs. W. She was likewise sponsored by Intel as software engineer and her I-140 was approved. She filed for adjustment of status and included Mr. H in her application.
There is no prohibition on multiple filings, but as a practical matter this should be avoided as it may cause confusion regarding biometrics, RFE’s, etc.
8) If an H-1B holder files for adjustment of status and his or her spouse and children are outside the United States, can the spouse and children enter the United States on an H visa?
Yes, provided the principal H-1B holder maintains his status as such.
9) If the applicant has children abroad, what does he or she need to do to prevent the children from aging out?
The applicant/parent must file Form I-824 with the adjustment application. This will be considered the child’s application for visa.
10) In January 1991, Jose, a U.S. citizen, filed an I-130 petition on behalf of his daughter, Maria. The petition was approved three months after or in March 1991. In December 1999, Maria came to the United States on a tourist or B1/B2 visa. Maria was authorized to stay for six months, but she never left the United States. Last month, she received a notice from National Visa Center stating that her visa number is available. Can Maria files for adjustment of status?
Yes, Maria is eligible for adjustment of status despite the fact that she has been out of status because she has the benefit of INA section 245(i). This allows an alien who has an immediate available immigrant visa to apply for adjustment of status even if he or she failed to maintain status or was employed without authorization to work. To be eligible under 245(i), an alien must be the beneficiary of an immigrant visa petition or application for labor certification that was filed on or before April 30, 2001.