To obtain permanent resident status in the United States, you may opt for consular processing (where you apply for an immigrant visa through the Department of State and must attend an interview at a U.S. Consulate in your country of residence abroad) or adjustment of status (where you remain in the United States and file an application with USCIS). Each has its own set of pros and cons that you should be familar with before choosing which option is right for you. For more information, take a look at: A Comparison of Consular Processing vs. Adjustment of Status and How Consular Processing Works.

Applying for Adjustment of Status

An adjustment of status (I-485) application may be either filed concurrently with an I-140 petition, or it can be filed after the I-140 has been approved. If the I-140 is filed first and the applicant later decides he would like to file an adjustment of status application, the application can be added to a currently pending I-140 petition to be adjudicated at the same time.

Medical Exam

All adjustment of status applicants are required to undergo a medical exam in the U.S. The exam must be performed by a USCIS- approved civil surgeon near the applicants’ residence. The applicant mails the sealed results of the medical exam to USCIS along with the Adjustment of Status application.

Processing Time

Processing times for both the I-140 and I-485 are extremely unpredictable. It is currently taking up to one year at the Texas Service Center, and is subject to change.

Employment Authorization and Advance Parole

Once an alien has filed an I-485 application, his or her underlying nonimmigrant status remains valid until it expires. While it is valid the alien may continue to work using the nonimmigrant status. During this time the applicant may not leave the United States using his visa, or his adjustment of status application will be considered abandoned. Also, unless the alien is in H-1B or L-1 status, his nonimmigrant status cannot be extended once the I-485 has been filed. After the nonimmigrant status expires, the principal alien and his family members are considered legally present in the U.S. as “Pending Permanent Residence Applicants” for the duration of the pending petition. This status does not confer on an alien any right to work or to travel outside the United States.

In order to work or travel while the I-485 is pending, the alien must obtain an Employment Authorization Document (I-765) and Advance Parole travel authorization or AP (I-131). These applications can be filed concurrently with the I-485 application.

Simply filing an application for EAD and AP confers no right on the alien to travel or accept employment. Aliens must actually have the approved documents in their possession in order to travel or work on that basis.

EAD and AP are valid for a period of one year and cannot be extended. Aliens must apply for a new EAD and AP document on an annual basis until the Adjustment of Status application is approved. It is therefore important to file applications for new EAD and AP documents early so that they can be approved prior to the expiration of the previous year’s EAD and AP. If the old EAD expires before the new EAD is granted, the alien must not work during the gap in employment authorization. Similarly, if an alien’s Advance Parole is going to expire, he should make sure that he is not out of the country. If an alien is out of the country on an expired Advance Parole, he may not reenter the U.S. by having his newly approved Advance Parole document mailed to him overseas. His Adjustment of Status application will be considered abandoned.

Dual Intent: Maintaining H-1B or L-1 Status While An Adjustment of Status Application is Pending

Aliens in H-1B or L-1 nonimmigrant status are allowed to have “dual intent,” meaning that they may maintain valid nonimmigrant status even while their adjustment of status applications are pending. Subsequent extensions of H or L status will not be denied on the basis of the pending adjustment of status application.

We advise clients who are in H or L status to maintain their nonimmigrant status as long as possible while their adjustment applications are pending. The advantage to maintaining nonimmigrant status is that if for some reason the adjustment application is denied, the alien will have his nonimmigrant status to fall back on and will not have to immediately leave the United States. In addition, he may continue to travel on his H or L visa and does not have to apply for EAD and AP on an annual basis.

If an H-1B or L-1 principal alien maintains his nonimmigrant status, his family members may choose either to maintain dependent H-4 or L-2 status or they may opt to apply for EAD and AP instead. Simply applying for and possessing an EAD or AP document does not nullify the holder’s nonimmigrant status; it is only by using an EAD or AP that an alien forfeits his nonimmigrant status. The first time an alien uses EAD or AP, his status is “Pending PR applicant,” or if Advance Parole is used, “Parolee.” If the principal alien maintains his nonimmigrant status, his family members may still opt to use the EAD and/or AP so that they can work while their Adjustment of Status applications are pending.

The L-1 or H-1B holder himself may wish to obtain EAD and AP and not use them. He then has them on hand for use in case he needs them. For example, if an L-1 beneficiary chooses to port to a new employer after the I-485 has been pending for 180 days, he may need to use his EAD to go work for the new employer.

Portability Provisions: Changing Employers Once the I-485 Has Been Filed

Because the I-485 is based on the alien’s intention to continue working for his employer indefinitely after receiving permanent status, even if the principal applicant receives his EAD, he has traditionally been required to continue working for the employer that filed the underlying I-140 petition. However, the American Competitiveness in the 21st Century Act (AC21) dramatically altered this requirement. (The text of the Act is available online.)

AC21 allows Adjustment of Status applicants to use an EAD to change employers once their Adjustment applications have been filed and remained unadjudicated for 180 days or more. The ability to change employers is referred to as “portability.” Portability provisions only permit adjustment applicants to work in a new position that is the “same or similar” to the position described in the applicant’s approved

Labor Certification. It is unclear whether the portability provisions of AC21 apply to nonimmigrants whose status does not require that a Labor Certification be filed. When concurrently filed I-140 & I-485 applications both remain unadjudicated after 180 days, an applicant is arguably eligible to change employers under AC21. However, at the time the I-140is adjudicated, the petitioning employer must certify his intent to provide the alien beneficiary with a job after his permanent residence is granted. If the alien has left employment with the petitioner and has no intent to return, the employer would not be able to certify its intent to continue employing the alien, and the I-140 would have to be denied. If the I-140 petition is denied for this or any other reason, the I-485 will also have to be denied.

It is important to keep in mind that no regulations have been passed to implement the portability provisions of AC21. USCIS has provided its interpretation of AC21's provisions in various policy memoranda. However, it is possible that when the regulations are published to implement AC21, they will not comport with USCIS interpretations. Any aliens who have relied on USCIS guidance will then be penalized.

About the Author: James Root

Root Law Group is a full service, exclusive immigration law firm which handles cases in all areas of immigration and nationality law. James Root, principal attorney for Root Law Group, has dedicated his entire legal career to fighting for and protecting the rights of U.S. immigrants and their U.S. employers. He is proactive in advocating reforms to the U.S. immigration laws and policies, especially those affecting professional workers and their immediate family members.

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