|
 |
| |
|
ADJUSTMENT OF STATUS APPLICATION BASED ON APPROVED LABOR CERTIFICATION
The final step to obtaining permanent residency is the filing of an adjustment of status application. This application is
filed with BCIS and requests that, based on your approved I-140, your status be adjusted from that of "non-immigrant"
(i.e., H1B) to immigrant (i.e., permanent resident). This application is biographical in nature and requires fingerprints,
medical exams, etc.
So long as your adjustment of status application is filed BEFORE the final expiration date of your non-immigrant status you
will remain "in status" and can remain in the U.S. after the expiration of your non-immigrant status, even if the adjustment
of status application is not yet approved. In order to continue working in the U.S. after the expiration of your
non-immigrant status however, you will need to file for employment authorization at the same time you apply for adjustment
of status.
-
TheAdjustment of Status Package
The Adjustment of Status (AOS) package consists of a number of BCIS forms and your individual supporting biographic
and professional documents. When your case is ready to begin, we provide you with a detailed instruction package
and all required forms on-line. We cannot start the AOS process too early, as the requested documents and
information are time-sensitive. We have a fast and safe process and are confident you will appreciate its
convenience.
Return to top
-
Priority Date
You can file your adjustment of status application when there are "immigrant visa numbers" available from the
Department of State for individuals in your preference category and born in your country of birth. The U.S.
government limits the number of immigrant visas available to foreign nationals, based on country of birth and
preference category. Every month, the State Department issues a "visa bulletin." This document tells us whether
there will be visa numbers available the following month for each category or whether a backlog has developed and
you must wait until the category is "current". Your place in the waiting line is determined by your
"priority date". Your priority date is the date your labor certification was filed . (not the date it
is approved.)
If, at the time your I-140 is approved and your adjustment of status is ready to be filed, the visa bulletin
indicates that the BCIS is accepting applications from persons of your nationality, in your preference category,
and with your priority date, then you can file the adjustment application immediately. If there is a backlog, you
must wait until BCIS is accepting applications with your priority date. So long as you have valid non-immigrant
status, you can remain in the U.S. and wait. (You can be in H-1B status for up to 6 years). If your non-immigrant
status expires before you can file your adjustment, you will probably be required to leave the U.S. and wait
outside the U.S. for a visa number to become available. You will then apply for your legal permanent residency
directly with the U.S. Consulate.
Return to top
-
Travel
Travel & Work on H and L Visas After AOS is Filed
This memorandum supersedes and amends theMarch 14, 2000 memorandum on dual intent for H-1 and L-1 non-immigrantswith
pending applications for adjustment of status, which changes the Adjudicator'sField Manual, Chapter 23.
Please note that the Service intends toaddress these issues definitively when the Service finalizes the interimrule
published on June 1, 1999, at 64 Fed. Reg. 29,208 (1999).When the final rule enters into force, the final rule, not
thismemorandum, will be controlling.
In Chapter 23 of the Adjudicator's FieldManual, the questions and answers added at APPENDIX 23-4, entitled
FREQUENTLY ASKED QUESTIONS ABOUT TRAVEL OUTSIDE THE UNITED STATES BY AN H-1 OR L-1 NON-IMMIGRANT WHO HAS APPLIED FOR
ADJUSTMENT OF STATUS: by the March 14, 2000 memorandum, are removed and replaced with the questions and answers
below:
Q: If an H-1 or L-1 non-immigrant hasfiled for adjustment of status under an employment-based preferencecategory
that requires an offer of employment in the United States, doesthe interim rule affect the applicant's
responsibility to establishhis/her intent to work for the petitioning entity?
A: NO. If an H-1 or L-1 has filed for adjustment status under an employment-based preference category that
requires an offer of employment in the U.S., the applicant still has the responsibility of establishing his/her
intent to work for the petitioning entity after becoming a permanent resident. Neither the rule nor the guidance
has modified this requirement or the corresponding requirement that the employer establish his or her intent to
employ the applicant.
In the interim rule and initial guidance, the term "open-market employment" was used to mean unrestricted access
to employment. Applicants with pending applications for AOS are eligible to apply for an employment authorization
document (EAD). With EAD, an alien has access to unrestricted employment, the "open-market." However, if the
applicant is adjusting status under an employment-based preference category that requires an offer of employment
in the U.S., the fact that an applicant is able to work in the open market does not alter the applicantŐs
responsibility to demonstrate intent to work permanently for the petition employer, i.e. to accept and work in
the labor certified position.
Return to top
Q: If an H-1 or L-1 non-immigrantor H-4 or L-2 dependent family member obtains an EAD based on theirapplication
for adjustment of status but does not use it to obtainemployment, is the alien still maintaining his or her
non-immigrantstatus?
A: YES. The fact that an H or L non-immigrant is granted an EAD does not cause the alien to violate his or her
non-immigrant status. There may be legitimate reasons for an H or L non-immigrant to apply for an EAD on the
basis of a pending application for adjustment of status. However, an H-1 or L-1 non-immigrant will violate his or
her non-immigrant status if she/he used the EAD to leave the employer listed on the approved I-129 petition and
engage in employment for a separate employer.
Return to top
Q: If an H-1 or L-1 non-immigrant has traveled abroad and was paroled into the United States via advance
parole, the alien is accordingly in parole status. Does this interim rule allow him or her to now apply for an
extension of non-immigrant status?
A: Until the final rule is published, an alien who was an H-1 or L-1 non-immigrant, but who was paroled pursuant
to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid and approved
petition. If the Service determines the alien's application for an extension of non-immigrant status, the decision
granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the
relevant non-immigrant classification.
Return to top
Q: If an H or L non-immigrant has traveled abroad and reentered the U.S. via advance parole, the alien is
accordingly in parole status. Does this interim rule allow him or her to now apply for an extension of
non-immigrant status?
A: A Service memorandum dated August 5, 1997, stated that an "adjustment applicant's otherwise valid and unexpired
non-immigrant employment authorization...is not terminated by his or her temporary departure from the United States,
if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii)." The
Service intends to clarify this issue in the final rule. Until then, if the alien's H-1 or L-1 employment
authorization would not have expired, had the alien not left and returned under advance parole, the Service will
not consider a paroled adjustment applicant's failure to obtain a separate employment authorization document to
mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H-1 or L-1 employer
between the date of his or her parole and the date to be specified in the final rule.
Return to top
Q: Should an alien returning to the United States from travel abroad who has a valid 1-512 and a valid H-1 or
L-1 non-immigrant visa be paroled in or readmitted in H-1 or L-1 status?
A: If an alien has a valid H-1 or L-1 non-immigrant visa and is eligible for H-1 or L-1 non-immigrant status and also
has a valid Form I-512, he or she may be readmitted into H-1 or L-1 status or be paroled into the United States.
It is the alien's prerogative to present either document at inspection. However, if an alien presents both a valid
H-1 or L-1 non-immigrant visa and a valid Form I-512, and the alien is eligible for the H-1 or L-1 non-immigrant
classification, the Service should inform the alien that H-1 and L-1 non-immigrants no longer need to use advance
parole to preserve pending applications for adjustment of status and should admit the alien in H-1 or L-1
non-immigrant status. The fact that an alien has applied for advance parole and received Form I-512 does not
compel him or her to use the advance parole.
If the alien is not admissible as an H-1 or L-1 non-immigrant, then he or she cannot be readmitted as an H-1 or L-1
non-immigrant. Instead, such an alien may be paroled into the United States.
Return to top
Q: Is an alien who has a multiple entry 1-512 and who has previously been paroled into the United States now
eligible for admission as an H-1 or L-1 if he or she is still in possession of a valid H-1 or L-1 visa?
A: Yes, the alien may be admitted as an H-1 or L-1. However, aliens returning from abroad may only be admitted as
an H-1 or L-1 when they have a valid H-1 or L-1 visa (unless visa exempt), remain eligible for H-1 or L-1
classification, and, where there has been a recent change of employer or extension of stay, have evidence of an
approved I-129 petition in the form of a notation on the non-immigrant visa indicating the petition number and the
employer's name, or a notice of action, Form I-797, indicating approval. If they do not meet these criteria, then
they use their 1-512.
Return to top
Memo from INS, 5/16/2000
-
Marriage
If you are currently married, and your spouse is in the US in valid status, but is not already a permanent resident
or US citizen, then you can include your spouse in your adjustment of status application as your "derivative" and
your spouse will become a permanent resident at the same time you do, provided you are married at the time the
adjustment is approved by BCIS and your spouse meets all eligibility requirements.
If you are currently married and your spouse is not already a US permanent resident or US citizen and is living
outside the US, you have two choices. First, your spouse can enter the US before you file for your adjustment of
status and you can include your spouse in your adjustment application. Second, your spouse can wait outside the US
until your adjustment is granted and then apply for an immigrant visa through the US Consulate in the Country where
he or she is living. If your spouse chooses to wait outside the US and apply for an immigrant visa through the
Consulate, it is unlikely that he or she will be able to enter the US, even for a visit, during the time your
adjustment is pending with the BCIS. In addition, depending on Consulate processing times, it may be several months
after your adjustment is approved before your spouse's immigrant visa is approved and your spouse is allowed to join
you in the US.
If you are not currently married, you should be aware that if you do not marry until after your adjustment of status
application is approved, your spouse cannot become a legal permanent resident with you. Instead, you will have to
file a separate petition for him or her and it may be several years before he or she can join you in the US.
(See Visa Bulletin - Family Based Preference Category 2A)
If you are not currently married, but you are planning to marry soon, in some cases it may be wise to wait until
after your marriage to file your adjustment of status application. If your spouse is in the US, or comes to the US
before you file your adjustment application, then you can include him or her in the application. If you file the
adjustment application after your marriage, but before your spouse comes to the US, he or she most likely will have
to wait outside the US until your adjustment is approved, then file an application for an immigrant visa with the
US Consulate.
If you marry while your adjustment of status application is pending with BCIS, but before BCIS approves it, you can
"add" your spouse to the application. Again, however, if your spouse is not in the US, he or she will have to wait
outside the US until your application is approved, and then apply for an immigrant visa at the US Consulate where he
or she is living.
Return to top
-
"AgingOut" Children
In order for any of your children (who are not already US citizens or permanent residents) to become permanent
residents through your adjustment of status application, they must be under 21 years of age at the time the BCIS
approves your adjustment of status application. Thus, it is very important that you notify your employer or legal
counsel if any of your children are 18 years of age or older when you begin this final step of the process.
Return to top
Return to top
|
|
|
