Green Card / PERM – Adjustment of Status

The final step in obtaining a U.S. “green card” in the application for permanent residence is the adjustment of status for foreign nationals in the United States. Foreign nationals who wish to immigrate to the U.S. can be processed for permanent residence at an American Embassy or Consulate abroad, or through an USCIS office in the United States. If the foreign national was legally admitted to the United States, always maintained legal status while in the United States, and never worked without authorization from the USCIS, no restrictions are placed on the permanent residence application process.

EMPLOYMENT-BASED APPLICATIONS FOR ADJUSTMENT OF STATUS are filed with the regional USCIS office having jurisdiction over the employer. USCIS offices may waive the employment-based permanent residence interview. If the interview is waived, the applicant (through our office) will be notified by mail of the USCIS’ approval of the application for permanent residence.Upon approval of the case, the permanent resident card will be mailed to the applicant’s residence.

Not all aliens in the United States are eligible for adjustment of status. All aliens adjusting status must have proof that they were inspected when they entered the United States, and must provide their original Form I-94 and/or a copy of the entry stamp in the passport. Such aliens must generally also establish that they have never violated their status in the U.S., or worked without authorization from the USCIS.

All adjustment applicants must list all of their U.S. employers for the past five years and provide proof that they had authorization to work for each employer. Adjustment applicants who held F-1 student status must also establish that they complied with all of the relevant regulations, including showing that they were always considered to be full-time students by their universities and that they followed the proper procedures for school transfers and employment. This will require the submission of all of the applicant’s Forms 1-20, diplomas, and transcripts.

WHAT IS A PRIORITY DATE?

Many years ago the United States established a quota for the number of persons that can obtain Permanent Resident Status through an employment based petition. The quota is based on the country in which you were born and your category of employment.

As of today there are backlogs for persons born in certain countries to obtain permanent resident status. The Visa Bulletin published on or about the 15th of each month provides us information regarding the quota. Please note that we can also use the country of birth of your spouse (referred to as cross chargeability) to use a different category. For example: if the employee was born in India but his spouse was born in Kenya, we can use the “All Other Countries” category. The priority date is based on the country of birth and not on the country of citizenship.

The priority date is the date the labor certification is filed. This date establishes one’s place in the quota for obtaining permanent resident status. Once the Labor Certification is approved, the I-140 petition can be filed. Concurrently or thereafter, the I-485 petition is filed to adjust one’s non-immigrant status to permanent resident status. The I-485 petition can only be filed if the priority date is current.

To see what date is currently current, view the Visa Bulletin. When you review the Visa Bulletin, you must:

First determine whether you are in Employment Based 2nd or 3rd category (commonly referred to as EB2 or EB3).
Thereafter look in the Visa Bulletin and look at the current date for your country of birth and your employment category. The date listed is referred to as the priority date.
If your Labor Certification was filed before to the date listed on the Visa Bulletin, then you are eligible to receive permanent resident status.
If your Labor Certification was filed after the date listed into the Visa Bulletin, you must wait for the date to move to your date.

We cannot estimate how long it will take for the dates to move. Often times the dates go back further in time. Therefore, please check the Visa Bulletin every month and contact us if your priority date is current (your filed Labor Certification date is before or the same date as the date listed on the Visa Bulletin for your category).

Items to note:

Until your priority date is current, you cannot obtain permanent resident status.
If you are married, and your spouse was born in another country with a more recent date, we can use that date for your case.

For persons on an H-1B visa, he/she can obtain extensions beyond the 6th year provided the Labor Certification has been pending for more than one year prior to end of the 6th year; you would receive an extension for one year.

If your I-140 is approved and your priority date is not current, you would get a 3 year extension of your H-1B (in this case your Labor Certification does not need to be pending for more than 1 year).
You can continue to obtain these H-1B extensions until you receive permanent resident status.

ABILITY TO TRAVEL WHILE ADJUSTMENT OF STATUS IS PENDING

While an adjustment application is pending with the USCIS, the applicant’s ability to travel outside the U.S. might be limited. If the alien must travel, an application for advance parole must be approved by the local USCIS office or a Service Center prior to the alien’s departure, unless the alien is also maintaining valid H or L status. If advance parole from the USCIS is not obtained prior to departing from the U.S., the USCIS may deny the Permanent Residency application.

Exception for H and L Nonimmigrants

USCIS regulations that became effective on July 1, 1999 permit applicants for adjustment of status who hold valid, multiple entry H/L visas to travel on those visas while the adjustment applications are pending without the need to apply for advance parole authorization, provided that they do not violate their status as H-1B or L-1 (or dependent) immigrants. This means that they must not have used advance parole authorization to travel, or must not have used an EAD to accept employment with an employer other than their H/L employer. The same applies to dependents on H-4 and L-2 status who use their EAD to work in the United States.

PROCESSING APPLICATIONS FOR PERMANENT RESIDENCE IN THE U.S.
(ADJUSTMENT OF STATUS – EMPLOYMENT BASED)
DOCUMENTS IN SUPPORT OF THE EMPLOYMENT-BASED APPLICATION

Six (6) photographs, according to USCIS specifications of each applicant. As of August 2, 2004, all photographs are to be full frontal view. Click on the link below for proper photograph instructions:
http://travel.state.gov/visa/visaphotoreq/visaphotoreq_5334.html#immigrant
Copies of all stamped pages of each applicant’s current passport and of all passports used to enter the United States at any time in the past.
Copies of all immigration-related documents for each applicant such as: Form 1-94, I-20, 1AP-66, and all previous nonimmigrant petition approval and extension notices, as relevant, verifying that the applicant has maintained his/her status while in the United States.
Birth certificate for each applicant. A birth certificate that includes the applicant’s full name, date and place of birth and the names of both parents is required for each applicant. If a birth certificate cannot be obtained because records have been destroyed or the government will not issue one, you should obtain a statement to that effect from the civil registrar’s office and proceed to obtain secondary evidence of birth. The secondary evidence can include a baptismal certificate that contains information of the birth date, and both parents. Otherwise an notarized affidavit (see below for sample affidavit) from a close relative, preferably the mother, stating the place and date of birth, the names of both parents and the maiden name of the mother.
Alternative documents can be submitted for the Birth Certificate depending on your Country of Birth. As to which alternative documents are valid please visit: http://www.travel.state.gov/visa/reciprocity/index.htm
Marriage certificate. Proof of current marriage, if applicable, is required.
Proof of termination of all prior marriages, such as divorce decree/s or death certificate/s.
Copy of any prior Employment Authorization Documents (EAD) applied for or approved by you.
Two Color Copies of a Government-issued photo ID (for Adults only). Examples are a driver’s license, copy of passport, state ID card. Any photo Identification issued by a state, local, or Federal Agency is acceptable.
Medical Report issued by an USCIS certified physician.
In order to comply with current legislation on vaccinations, an applicant for an immigrant visa or adjustment of status is required to submit proof of vaccination against several vaccine-preventable diseases, including mumps, measles, rubella, polio, tetanus, and diptheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations recommended by the advisory committee for immunization practices. Proof of vaccinations must be submitted to USCIS-approved physician conducting the medical examination. Only this physician (or another designated civil surgeon authorized by the federal government to conduct medical examinations) is qualified to advise you whether or not further actions, if any, are necessary to comply with current legislation.
The medical exam is necessary for each member of your family. The medical exam must be conducted by a civil surgeon who has been designated by the USCIS and will record the results of the exam on INS form I-693. The form I-693 will be given to you in a sealed envelope. DO NOT OPEN THE SEALED ENVELOPE. For the most current list of civil surgeons in your area visit:
https://egov.uscis.gov/crisgwi/go?action=offices.type&OfficeLocator.office_type=CIV
Certified copies of all Court and/or Police records if you have ever been arrested or detained. You must provide these documents irregardless of whether you were convicted.
Last years W-2 and last three pay stubs for only the primary applicant.

FREQUENTLY ASKED QUESTIONS

General AOS:

Question: For which family members can I include for the Adjustment of Status (I-485) ?

Answer: Your spouse and children that are under 21 and in the United States.

Question: What if my child will turn 21 within the next year ?

Answer: Please contact us so we can discuss your particular situation and whether your child will be able to obtain permanent resident status.

Question: After filing for the Adjustment of Status, am I required to continue filing for H-1B extensions or H-4 extensions for my family members ?

Answer: No, however we recommend that you remain in H status if possible in the event that your Adjustment of Status is denied for any reason.

Question: How can I check the status of my I-485 ?

Answer: Processing times can be viewed on our website, www.shahandkishore.com.

Employment Authorization Document

Question: Will I and my family members get a Work Permit ?

Answer: Yes, we will file the I-765 for you and your spouse to obtain the Employment Authorization Document (EAD) which many refer to as a Work Permit.

Question: How long will it take to get the Work Permit ?

Answer: Processing times for I-765 can be viewed on our website, www.shahandkishore.com. If you do not receive a EAD within 90 days from your receipt date, you can make an appointment with your local USCIS office to directly obtain it from that office. Appointments are made through the internet at: http://infopass.uscis.gov/.

Question: If I am on an H-1B visa and start working on my EAD, what is my status ?

Answer: If you are in H-1B status and use an EAD card to work in the “open market;” i.e. for an employer other than the petitioner of your H-1B you and your family members are no longer in H status. Your status is now that of “pending immigrants” and you and your family will be required to use an advance parole (travel) document to reenter the United States upon returning from a trip abroad.

Question: If my spouse or child start working on the EAD, what is their status ?

Answer: If your spouse or child is in H status and s/he uses an EAD card to work in the United States, s/he is no longer in H status. Her/his status is now that of a “pending immigrant” and s/he will be required to use an advance parole (travel) document to reenter the United States upon returning from a trip abroad. Please note however, that the use of the EAD card by an H-4 or L-2 visa holder does not affect the H or L status of the rest of the family.

Living Abroad Or Spending A Considerable Period Abroad

Question: I have my permanent residence, how long can i stay outside the u.s. without losing my permanent resident status ?

Answer: Unfortunately, there is no specific rule on the length of stay outside of the United States to avoid losing your permanent resident (also know as permanent resident abandonment). All the facts of the situation must be taken into account and is specifically important due to risk that travel abroad entails. The common misunderstanding that you can simply return to the Unites States once every six months to avoid losing your permanent resident is incorrect advice for the reasons below:

* On October 20, 2011, U.S. Customs and Border Protections (CBP) confirmed that “CBP officers are less focused on the length of time abroad and more on where does the person actually live.” CBP will look at the totality of the circumstances, including, “how many years the person has lived in the U.S; whether the person is employed in the U.S. or abroad; where family members live; [and] whether U.S. taxes have been paid.”

* in addition, the CBP Inspector’s Field Manual (“IFM”) similarly reinforces and will look into “arrival on a charter flight where most passengers are non-resident with return passage, lack of fixed address in the U.S. or frequent prolonged absences from the U.S.”

* Furthermore, in questionable case, the IFM recommends officers to “ask other documentation to substantiate residence, such as a driver’s license and employer identification cards.”

Given the above policy, we advise you to schedule a) telephone conference or 2) meeting with an attorney to review the details of your case before you make a decision to live abroad or spend a considerable period abroad.

Birth Certificates

Question: I was born in India and I do not have a Birth Certificate. What should I do ?

Answer: You would require a Non-Availability Certification from the municipal government where you were born. You should also provide 3 affidavits. Please see below for a sample affidavit. If possible you should in addition to the affidavits provide a school leaving certificate.

Question: I was not born in India and I do not have my birth certificate. What should I do ?

Answer: View the following site http://www.travel.state.gov/visa/reciprocity/index.htm and click on the information pertaining to your country of birth as to secondary documents that are acceptable.

Question: I have my birth certificate but my name or other information is missing from the Certificate or there is information that is not correct. What should I do ?

Answer: You should have the incorrect information corrected. If your birth certificate does not have your name, please submit three affidavits.

Advance Parole

Question: I am on H status, do I or my family members require Advance Parole to leave and re-enter the United States ?

Answer: If you are on valid H status and hold a H visa, you do not need to apply for advance parole authorization, provided that you not violate their status as H-1B or L-1 (or dependent) immigrants. This means that you must not have used advance parole authorization to travel, or must not have used an EAD to accept employment with an employer other than their H/L employer. The same applies to dependents on H-4 and L-2 status who use their EAD to work in the United States. Although you may not require an Advance Parole at this time to travel, due to the delays in obtaining an Advance Parole, we will apply for the AP at this time.

USE OF EMPLOYMENT AUTHORIZATION CARDS BY APPLICANTS FOR ADJUSTMENT OF STATUS IN H AND L STATUS

As applicants for adjustment of status, you and all family members applying with you are entitled to obtain an employment authorization (“EAD”) card. An EAD card would authorize you and your family members to work for any employer in the United States while your applications for adjustment of status are pending.

Please note however, that the use of an EAD card may affect your H-1B or L-1 status as well as the H-4 and L-2 status of your family members.

Obtaining the EAD

Upon submission of the Petitions, you will receive a receipt notice approximately one month after the filing for the Employment Authorization Document (EAD). You should receive your work permit within two to three months after submission of the petition. Your work permit is valid for one year. As a result of the processing times for the Adjustment of status taking longer than one year, a renewal of the work permit will most likely be required.
PLEASE CONTACT OUR OFFICE FOUR MONTHS PRIOR TO THE EXPIRATION OF YOUR EAD FOR AN EXTENSION OF THE EAD.

Use of an EAD card by H-1B or L-1 visa holders:

If you are in H-1B or L-1 status and use an EAD card to work in the “open market;” i.e. for an employer other than the petitioner of your H-1B or L-1 visa, you and your family members are no longer in H and L status. Your status is now that of “pending immigrants” and you and your family will be required to use an advance parole (travel) document to reenter the United States upon returning from a trip abroad.

Use of an EAD card by H-4 or L-2 visa holders:

If your spouse or child is in H-4 or L-2 status and s/he uses an EAD card to work in the United States, s/he is no longer in H and L status. Her/his status is now that of a “pending immigrant” and s/he will be required to use an advance parole (travel) document to reenter the United States upon returning from a trip abroad. Please note however, that the use of the EAD card by an H-4 or L-2 visa holder does not affect the H or L status of the rest of the family.

RULES OF BIRTH DOCUMENTS

Each applicant must have birth documentation. A passport is not considered as acceptable birth evidence. An acceptable birth certificate must be issued by an appropriate government authority, i.e., one charged with the responsibility for keeping birth and death records for that municipality, and must include the following information:
1. Name of child
2. Date of birth
3. Place of birth
4. Full name of father
5. Full name of mother
If an acceptable birth document is not available, the applicant must submit two sworn birth affidavits executed by appropriate relatives and a certificate of “Nonexistence of Birth Record” issued by an appropriate government authority, i.e., one charged with the responsibility for keeping birth and death records for that municipality, attesting that there is no record of the birth. An acceptable certificate of “Nonexistence of Birth Record” must include:
1. Name of child
2. Date of birth
3. Place of birth
4. Full name of father
5. Full name of mother
If a birth certificate does not contain all the required information, the applicant must submit the incomplete birth certificate and one sworn birth affidavit executed by an appropriate relative.
Affidavits. An acceptable birth affidavit must be executed by one or both parents and must be sworn in the presence of a notary public. If one parent is deceased and two affidavits are required, the affidavit must be executed by the surviving parent and an older relative with direct knowledge of the birth of the child. If both parents are deceased, the affidavit must be executed by one or two older relatives with direct knowledge of the birth of the child. A birth affidavit must contain the following information:
1. Name of child
2. Full name of father
3. Full name of mother
4. Place of birth
5. Date of birth
A person who has used a different name from the one shown on the birth document, must produce a document explaining the use of such name. The following documents are commonly available as evidence:
1. Baptismal certificate
2. Marriage certificate or divorce decree
3. School records showing early use of adopted name

If none of the foregoing documents are available, any other document, or combination of documents, that appear to resolve the difference in names will be considered. A personal sworn statement from the applicant is not acceptable, unless there is other evidence to substantiate it.*

Alternative Documents

Alternative documents can be submitted for the Birth Certificate depending on your Country of Birth. As to which alternative documents are valid please visit:
http://www.travel.state.gov/visa/reciprocity/index.htm

VACCINATION REQUIREMENTS

Recent changes to United States immigration law now require immigrant visa applicants to obtain certain vaccinations (listed below) prior to the issuance of an immigrant visa. Panel physicians who conduct medical examinations of immigrant visa applicants are now required to verify that immigrant visa applicants have met the new vaccination requirement, or that it is medically inappropriate for the visa applicant to receive one or more of the listed vaccinations.

mumps,
measles,
rubella,
polio,
tetanus and diptheria toxoids,
pertussis,
influenza type b (Hib) and,
hepatitis B,
varicella,
pneumococcal,
influenza.

In order to assist the panel physician, and to avoid delays in the processing of an immigrant visa, all immigrant visa applicants should have their vaccination records available for the panel physician’s review at the time of the immigrant medical examination. Visa applicants should consult with their regular health care provider to obtain a copy of their immunization record, if one is available. If you do not have a vaccination record, the panel physician will work with you to determine which vaccinations you may need to meet the requirement. Certain waivers of the vaccination requirement are available upon the recommendation of the panel physician.

Only a physician can determine which of the listed vaccinations are medically appropriate for you, given your age, medical history and current medical condition.