DESCRIPTION:

An immigrant must usually undergo a multi-step process in order to obtain permanent residency (green card) in the United States.  The entire process may take several years, depending on the immigrant’s immigrant category, in addition to his or her country of birth.  First, the USCIS must approve the immigrant’s petition by a qualifying relative, employer, or investor visa.  Next, an immigrant visa number through the National Visa Center (NVC) of the United States Dept. of State (DOS) must be available.  A visa number might not be immediately available even if the USCIS approves the petition, because the number of immigrant visa numbers is limited every year by quotas set forth by the Immigration and Nationality Act. There are also certain additional limitations by country of birth. Therefore, most immigrants will be placed on lengthy waiting lists. Several exceptions allowing for immediate visa number availability upon an immigrant’s visa petition may apply, depending on the immigrant’s visa type. To determine whether you can fall under such exceptions, it is advisable that you consult with an experienced U.S. immigration attorney.

When an immigrant visa number becomes available, the applicant must either apply with the USCIS to adjust their current status to permanent resident status or apply with the DOS for an immigrant visa at the nearest U.S. consulate before being allowed to come to the United States. For Adjustment of Status (AOS), an immigrant should submit the Form I-485, Application to Register Permanent Residence or Adjust Status.  The USCIS conducts a series of background checks (including fingerprinting for criminal background checks, marriage and birth certificate verifications, etc.). After reviewing the required documentation, the USCIS makes a decision on the application.  Once the adjustment of status application is accepted, the alien is allowed to stay in the U.S. even if the original period of authorized stay on the Form I-94 has already expired. However, he or she may not leave the country until the application is approved or rejected. If the alien has to leave the U.S. during this time, he/she can concurrently apply for travel documents at the USCIS with the Form I-131, for Advance Parole.

Under Section 245(i) of the Immigration and Nationality Act, many immigrants who would have been forced to leave the United States are eligible to stay in the U.S.  In general, immigrants who entered the U.S. without being inspected by a USCIS officer, who have ever worked in the U.S. without authorization, or who have failed to maintain legal status in the U.S. are barred from adjustment of status.  However, in December 2000, Congress passed the LIFE Act, which, under Section 245(i), allows immigrants who had labor certifications or visa petitions filed between 1998 and April 30, 2001, to qualify for adjustment of status. Immigrants who entered the U.S. illegally or without inspection, immigrants who fell out of valid nonimmigrant status or committed visa violations while in status, immigrants admitted under the Visa Waiver Program, immigrants who worked while unauthorized to do so, immigrants admitted without a visa, and crew members who entered the U.S. with a D visa, may be eligible to adjust their status without first reentering the U.S.  However, a labor certification or visa petition must have been filed on behalf of such an immigrant on or before April 30, 2001.

Previously, any immigrant desiring to adjust his or her status on the basis of an approved I-140 employment-based petition was required to establish that he or she had never failed to maintain legal, nonimmigrant status. However, this would render for adjustment of status ineligible for many people who accepted unauthorized employment or allowed their visas to expire. Congress therefore amended Section 245(k) of the Immigration and Nationality Act, which provides that an alien who is eligible to receive an immigrant visa under an employment based I-140 visa petition may adjust status if:

1. The alien, on the date of filing an application for adjustment of status, is lawfully present in the U.S.;

2. The alien, subsequent to such lawful admission, has NOT for an aggregate period exceeding 180 days:
   a.  Failed to maintain, continuously, lawful status;
   b.  Engaged in unauthorized employment; OR
   c.  Otherwise violated the terms and conditions of the alien’s admission.

REQUIREMENTS for I-485:

Immigrants can file for Adjustment of Status once their visa number becomes available. This first requires that the USCIS approve their visa petition; then, in many cases, immigrants must wait for their visa numbers to become available. However, certain immigrants are eligible for immediate visa number availability at the moment the USCIS approves their visa petition, which means they can file I-485 (adjustment of status) concurrently with their immigration petition.

Once an immigrant is ready to file for Adjustment of Status, he or she must provide documentation, often including but not limited to: visa approval notice, visas and status documentation, birth certificate (or equivalent), marriage certificate, diplomas, 6 identical passport photos, tax returns, W-2s and pay stubs, and a completed health exam (the Form I-693, Report of Medical Examination and Vaccination Record).

PROCESSING:

After an immigrant supplies all necessary documentation, he or she must provide a filing fee payable to the U.S. Dept. of Homeland Security. Once the Form I-485 and all supplementary documents have been filed with the USCIS, the USCIS will conduct a thorough investigation of the foreigner’s identity, health, criminal background, and the ability to support himself or herself. The USCIS will also provide applicants with an appointment date to take applicants’ biometrics (fingerprinting and scans). Then, it is simply a matter of months before the USCIS either requests additional documentation or approves or denies the immigrant applicant’s I-485.  If the USCIS approves the immigrant applicant’s I-485, he or she becomes a lawful permanent resident in the U.S. and will receive a green card.

MEMOS:

• USCIS I-485 Standard Operation Procedure

• USCIS – Applicability of 245 (k)

• Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act. (USCIS)

• USCIS Announces Direct Filing Instructions for Forms I-129F, I-131, I-140, I-360, I-485, I-765, and I-907 (6-21-07)

• USCIS Memo: FBI Name Checks Policy and Process Clarification for Domestic Operations (12-21-06)

• USCIS Memo: Determination of Ability to Pay under 8 CFR 204.5(g)(2) – (5-04-04)

• INS Memo on Concurrent Filing When Visa Petition is Denied (2-28-03)

• INS Memo Re: Hs and Ls Who Work After Entering on Advance Parole (5-16-00)

• “Arriving Aliens” and Adjustment of Status: What is the Impact of the Government’s Interim Rule of May 12, 2006? (Updated 11-5-08)

• Adjustment of Status of “Arriving Aliens” Under the Interim Regulations: Challenging the BIA’s Denial of a Motion to Reopen, Remand, or Continue a Case (4-16-07)

• USCIS Memo Clarifying Section 245(i) (3-09-05)

• INS Memo re: Adjustment of Status under Section 245(i) as Amended by the LIFE Amendment (1-26-01)

• INS Memorandum Interpreting Section 245(i) Employment-Based Provisions (6-10-99)

• INS Memorandum Interpreting Section 245(i) (4-14-99)

• I-140 Portability for Employment-Based Adjustment Applicants in Removal Proceedings: Strategies for Challenging Matter of Perez-Vargas (Updated 1-09-08)

• Interim Guidance for Processing Form I-140 EB Immigrant Petitions and Form I-485 and H-1B Petitions under AC-21 (5-12-05)

• INS Memo: Initial Guidance on AC-21 – Includes Section on 180-Day Portability Rule (6-19-0)

• Communist Party Member Inadmissibility