Transcript Employment-based Form I-485, Application to Register

Employment-based Form I-485,
Application to Register
Permanent Residence or Adjust
Status
2010 Fall Stakeholder Conference
Texas Service Center
1
Introduction

Adjustment of status is a means by
which an alien may obtain lawful
permanent residence without leaving
the United States.
2
Introduction (Cont’d.)

When is an alien eligible for Adjustment
of Status?

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Alien must be in the United States
Alien must be eligible to receive an
immigrant visa and be admissible to the
United States
Visa must be immediately available
3
Introduction (Cont’d.)

Service Centers adjudicate employmentbased adjustment applications when the
applicant is eligible for an interview
waiver

Interview waiver means that if the case
meets certain criteria it may be approved
without the alien ever being interviewed
4
Who May File?

An alien who is the beneficiary of an
approved/concurrently filed employmentbased immigrant visa petition:

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Form I-140, Immigrant Petition for Alien Worker
Form I-360, Petition for Amerasian, Widow(er), or
Special Immigrant
Form I-526, Immigrant Petition by an Alien
Entrepreneur
Accompanying family members (spouse and
children) in the United States

Derivative family members may not adjust status
before the principal applicant.
5
Follow-to-Join

Family members (spouse and children)
outside the United States

Principal alien must file Form I-824,
Application for Action on an Approved
Application or Petition
6
Visa Availability

A visa must be available at the time the Form I-485
application is filed

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A visa must also be available at the time the
applicant adjusts status

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July 2007 Visa Bulletin
Visa Regression
The Department of State Visa Bulletin summarizes
the availability of visas by an alien’s country of birth,
preference classification and priority date
An applicant’s priority date must be earlier than the
date listed on the DOS Visa Bulletin
7
Priority Dates

The applicant’s priority date and
preference classification may be
ascertained from one or more of the
following:

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Page 1 of an approved visa petition
I-797 Notice of Approval
National Information Systems
Local Information Systems
8
Rules of Chargeability

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The visa for an Employment-Based adjustment applicant will
be charged against his or her country of birth {INA § 202(b)}
If a visa is not available for the derivative applicant’s country
of birth, an accompanying or following to join child may
cross charge to that of either parent {INA § 202(b)(1)}
If a visa is not available for the derivative applicant’s country
of birth, an accompanying or following to join spouse may
cross charge to that of the principal applicant {INA §
202(b)(2)}
If a visa is not available for the principal applicant’s country
of birth, the principal alien may cross charge to that of the
derivative spouse {9 FAM 40.1, Note 8}
9
Security Checks

Depending on case-specific factors,
security checks may be required:

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FBI fingerprint check
FBI name check
Interagency Border Inspection System
(IBIS)
NSEERS
10
Properly Completed Form I485

To be properly filed, the applicant must
submit a completed and signed Form I485 application, along with the
appropriate fee.

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Is the application completed?
Is there evidence that the fee was
collected?
Is the application signed?
11
Initial Evidence

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Birth Certificate or other acceptable secondary
evidence
Copy of passport page with nonimmigrant visa
Proof of lawful entry and status
Employment letter (principal applicant only)
Principal applicant’s employment Letter or Form I-134
(derivative applicants only)
Approval notice for immigrant petition
Proof of qualifying relationship to principal applicant –
marriage license, birth certificate, adoption
certificate, etc. (derivatives only)
Photographs
12
Form G-325A,
Biographic Information

Form G-325A must be completed,
signed and submitted by applicants
between the ages 14 and 79.
13
Evidence of Lawful Admission/
Maintenance of Status

If the applicant is claiming admission to the United
States, the record must contain evidence of
inspection and admission, or parole*. Also, the
applicant must submit evidence of maintaining
status. This evidence may include photocopies of:


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Form I-94 Arrival/Departure Record
Passport with an admission stamp
Approval Notices (Form I-797)
Form I-20 or DS-2019 (IAP-66) school records
*NOTE: a paroled alien is barred from adjusting status on the basis of an
employment-based immigrant visa petition under INA § 203(b),
because a parolee is not in a “lawful nonimmigrant status.”
14
Form I-693

Form I-693, Medical Examination for Aliens
Seeking Adjustment of Status, must:


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Be received in a sealed envelope at the Service
Center
Be an original, completed and signed by the
applicant and a designated USCIS civil surgeon,
and
Have been executed no more than 1 year before
the date of filing the I-485.
See 8 C.F.R. § 245.5
15
Form I-693 (Cont.)

As of January 4, 2010, HIV is no longer
defined as a communicable disease of
public health significance.


Any alien diagnosed with HIV infection will
no longer be inadmissible under INA §
212(a)(1)(A)(i).
Serologic testing for for HIV infection not
required.
16
Eligibility Under INA §
245(a)

INA § 245(a) is the section of law that
permits an alien, who is the beneficiary of an
approved immigrant visa petition, to adjust
status to an LPR, provided that certain
documentary requirements are met:


The applicant was inspected and admitted, or
paroled* into the United States
The alien has made an application for adjustment
17
Eligibility Under INA § 245(a)
(Cont’d)



The applicant is eligible to receive an immigrant
visa
An immigrant visa is immediately available to the
applicant at the time the application is filed
The applicant is not inadmissible to the United
States under INA § 212.
*A parolee is barred from adjusting status on the basis of an employmentbased immigrant visa petition under INA § 203(b), because a parolee is
not in a “lawful nonimmigrant status.”
18
Restricted Under 245(a)

The following aliens are restricted from adjusting under 245(a):

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Entered TWOV
Entered as WT/WB
Entered as a crewman (D1)
Entered under VWPP
EWI
Ever employed without authorization
Not in lawful immigration status when filing
Ever failed to maintain continuous lawful immigration status (other
than through no fault of the alien or for technical reasons)
Ever violated terms and conditions of nonimmigrant admission
Not maintaining a lawful nonimmigrant status when filing (only
applies to employment-based I-485s)
19
Lawful Immigration Status

The following aliens are considered to be in lawful
immigration status:

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In lawful permanent resident status
An alien admitted to the United States in nonimmigrant
status whose initial period of admission has not expired or
whose nonimmigrant status has been extended
In refugee status (not terminated)
In asylee status (not terminated)
In parole status which has not expired, been revoked or
terminated

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However, a parolee is barred from adjusting status on the basis
of an employment-based immigrant visa petition under INA §
203(b), because a parolee is not in a “lawful nonimmigrant
status.”
An alien granted TPS is in lawful status during the
period of TPS. See INA § 244(f)(4).
20
Failure to Maintain Continuous Lawful
Status: No Fault of the Alien or
Technical Reasons

The alien may have failed to maintain continuous
lawful status other than through no fault of the alien,
or for technical reasons, such as:

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Inaction of another individual or organization designated by
regulation to act on behalf of the individual and whose
actions the individual has no control, if the inaction if
acknowledged by that individual or organization
A technical violation resulting from inaction of USCIS
A technical violation caused by the physical inability of the
alien to request an extension of nonimmigrant status from
USCIS
21
INA § 245(k) Requirements

INA § 245(k) is available to some employment-based
applicants who are ineligible to adjust status under
INA § 245(a) if the alien:
 Is eligible to receive an immigrant visa under INA
§ 203(b) paragraphs (1), (2), or (3) (or INA §
203(b)(4), in the case of INA § 101(a)(27)(C)
religious worker)
 Was lawfully admitted to the United States as a
nonimmigrant
22
INA § 245(k) Requirements
(Cont’d)

Provided that subsequent to last admission
the alien has not, for an aggregate period
of more than 180 days:
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Failed to continuously maintain a lawful status
Engaged in unauthorized employment; or
Otherwise violated the terms and conditions of
admission.
23
INA § 245(i)

INA § 245(i) allows a person unlawfully
present in the United States to adjust status
when the priority date of the underlying visa
petition or labor certification is on or before
April 30, 2001.

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Was not lawfully admitted to the United States as
a nonimmigrant; or
Engaged in unauthorized employment; or
Subsequent to admission, violated status for an
aggregate period of more than 180 days
24
INA § 245(i) (Cont’d)

A “grandfathered” alien must satisfy the following
requirements:

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The alien was the beneficiary of a qualifying immigrant
petition or application for labor certification filed on or
before April 30, 2001.
The qualifying immigrant visa petition or the qualifying
application for labor certification was “properly filed” and
“approvable when filed.”
The principal alien was physically present in the United
States on December 21, 2000, if the alien’s qualifying
immigrant visa petition or labor certification was filed
between January 15, 1998 and April 30, 2001.
Submit Supplemental A, and $1,000 fee (if required)
25
Ineligible Under INA § 245*

Aliens who are not eligible for
adjustment of status under INA § 245
include:
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K-1 nonimmigrants
Conditional residents
An alien who seeks to adjust status based
upon marriage to a USC or LPR that
occurred while the alien was under removal
proceedings
*Some individuals may, in fact, be eligible under certain other legal provisions
26
Ineligible Under INA § 245
(Cont’d)

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An E nonimmigrant who has not submitted a
properly completed Form I-508
An A or G nonimmigrant who has not submitted a
properly completed Form I-508 (Form I-508F for
French nationals) and Form I-566
An alien subject to INA § 212(e) who has not
obtained a waiver (Form I-612) of the 2-year
requirement or fulfilled the requirement
An alien who is not the beneficiary of a valid
immigrant visa petition
Entered as an S nonimmigrant
27
Unlawful Status vs. Unlawful
Presence


Although an alien in unlawful status may
accrue unlawful presence, such an alien may
be eligible for adjustment of status if he or
she has never departed the United States.
Additionally, an alien in unlawful status may
be protected from the accrual of unlawful
presence for certain periods of time.
28
Interview Requirement

Pursuant to 8 C.F.R. § 245.6:
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Each applicant for adjustment of status
shall be interviewed by an immigration
officer.
Interview may be waived when USCIS
determines that an interview is
unnecessary.
In some cases, an interview may not be
waived.
29
Special Requirements
A, E, or G Nonimmigrants

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Form I-508 (Waiver of Rights, Privileges, Exemptions,
and Immunities) or I-508F for French nationals, is
required by any applicant who was admitted as an A,
E, and G non-immigrant and has not changed status
to another nonimmigrant classification.
Form I-566 (Interagency Record of Request - A, G, or
NATO Dependent Employment Authorization or
Change/Adjustment to/from A, G, or NATO Status) is
required of any applicant currently maintaining A, G
or NATO nonimmigrant status.
30
Special Requirements
212(e) Waiver

Individuals entering as a J-1 or J-2
nonimmigrant may be subject to the two-year
foreign residence requirement of INA §
212(e).


The residency must be fulfilled or I-612 waiver of
foreign residency must be filed and approved prior
to the applicant filing for adjustment of status.
Exception: Individuals filing for the waiver based
on a “No Objection Letter” may submit it
concurrently with the I-485 application. (Waiver
must still be approved prior to approving
adjustment of status.)
31
Special Requirements
Certain Health Care Workers

INA § 212(a)(5)(C) – “any alien who seeks to enter the United
States for the purpose of performing labor as a health-care
worker, other than a physician, is excludable unless the alien
presents … a certificate from the Commission on Graduates of
Foreign Nursing Schools, or a certificate from an equivalent
independent credentialing organization…”
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Nurses
Occupational Therapists
Physical Therapists
Speech Language Pathologists and Audiologists
Medical Technologists
Physician Assistants
Medical Technicians
32
Special Requirements
Approved Credentialing Organizations

The Commission on Graduates of
Foreign Nursing Schools (CGFNS) is
authorized to issue certificates for
Nurses, Occupational Therapists,
Physical Therapists, Speech Language
Pathologists and Audiologists, Medical
Technologists, Physician Assistants,
Medical Technicians
33
Special Requirements
Approved Credentialing Organizations


The National Board for Certification in
Occupational Therapy (NBCOT) may
issue certificates for occupational
therapists
The Foreign Credentialing Commission
on Physical Therapy (FCCPT) may issue
certificates for physical therapists
34
Special Requirements
Approved Credentialing Organizations

INA § 212(r) – “212(a)(5)(C) shall not
apply to an alien who seeks to enter the
United States for the purpose of
performing labor as a nurse who
presents … a certified statement from
the Commission on Graduates of
Foreign Nursing Schools (or an
equivalent independent credentialing
organization)…”
35
Special Requirements
Physicians serving in underserved areas

Alien physicians may apply for national
interest waiver of the Department of Labor’s
labor certification process.

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Must work full-time as a physician in an area or
areas designated by the Secretary of Health and
Human Services as having a shortage of health
care professionals or at a health care facility under
the jurisdiction of the Secretary of Veteran Affairs
Physician may not receive lawful permanent
residence status until he or she has worked
full time as a physician for 5 (or in some
cases, 3) years in the shortage area.
Schneider v. Chertoff, (9th Cir. 2006); Policy Memorandum 1-23-07
36
Special Considerations
Child Status Protection Act (CSPA)

The Child Status Protection Act (CSPA),
Public Law 107-208, 116 Stat. 927,
amends the Immigration and Nationality
Act (Act) by permitting an applicant for
certain benefits to retain classification
as a “child” under the Act, even if he or
she has reached the age of 21.
37
Special Considerations
AC21

Section 106(c) of the American
Competitiveness in the Twenty-First
Century Act (AC21) allows for
individuals to change employers (port)
to a same or similar occupation as is
listed on the I-140, once the I-485 has
been pending 180 days or more.
38
Special Considerations
Form I-864 and Public Charge

An applicant for employment-based
adjustment of status must submit Form
I-864, Affidavit of support:


If a relative of the applicant filed the
employment-based immigrant petition
OR
If a relative has significant ownership
interest in the entity that filed the
immigrant visa petition
8 C.F.R. § 213a.2(a)(2)(i)(c); INA §§ 212(a)(4)(D) and 213A(f)(4)
39
Special Considerations
Abandonment of Application

The travel outside the United States by an
applicant for adjustment who is not under
exclusion, deportation, or removal proceedings
shall not be deemed an abandonment of the
application if he or she was previously granted
advance parole by USCIS for such absences,
and was inspected and paroled upon returning
to the United States.

Exception for H-1/H-4 and L-1/L-2 nonimmigrants
40
Special Considerations
Religious Workers

In accordance with district court’s order
in Ruiz-Diaz v. U.S.A., No. C07-1881RSL
(W.D. Wash. June 11, 2009), certain
categories of aliens will receive
protection from the accrual of unlawful
presence and from unauthorized
employment during periods in which an
alien was not permitted to concurrently
file an I-485 based on Form I-360.
41
Special Considerations
Decisions

The applicant shall be notified of the decision
of the director and, if the application is
denied, the reasons for the denial

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No right to the appeal process
May file a motion to re-open/reconsider
If the application is approved, the applicant’s
permanent residence shall be recorded as of
the date of the order approving the
adjustment of status.

Immigrant visa must be available
8 C.F.R. § 245.2(a)(5)
42