I Filed My I-485—Now What?

An unprecedented number of foreign nationals were able to file I-485 adjustment of status applications during the summer of 2007 — the last major step for those who are being sponsored by an employer for a "green card" or permanent residence in the U.S. But the process can take a toll on those who expect that, because they have filed their application, the end of the road is just around the corner. It still may take months or even years before the I-485 is adjudicated by U.S. Citizenship and Immigration Services (USCIS), the federal agency that oversees the immigration process. Long waits are especially common for individuals whose priority dates, based on the State Department's Visa Bulletin, are not current (i.e., there is a backlog of applicants from their country in the same priority category). For many of those who are waiting, questions arise relating to employment, international travel and maintenance of immigration status while the I-485 application is pending. This article explores these and related questions.

I have H-1B status (or L-1A, or some other work-related status) and I have an Employment Authorization Card. What do I do with that?

An I-485 applicant is eligible to file an I-765, Application for Employment Authorization Document, either concurrently with the I-485 or at any time while the I-485 application is pending. Many, if not most, do. When the I-765 is approved, the applicant will receive a plastic Employment Authorization Card (EAC) that is valid for one year and allows the applicant to legally work in the United States.

Of course, for those who are being sponsored by an employer, many already have work authorization by virtue of being in the H-1B, L-1A or another work-related nonimmigrant category. What, then, is the effect of having both nonimmigrant work authorization and an Employment Authorization Card? The short answer is that a person with both H-1B status (for example) and an EAC may work using either.

The long answer is that each choice has possible repercussions, depending, among other things, on whether the I-485 applicant is married or has children.

If an applicant for permanent residence begins working on the basis of the EAC by presenting it to his employer for I-9 purposes, he will no longer be considered to be in H-1B status. For some applicants, the loss of H-1B status will have no impact. That change of status, however, also affects the employee's dependents (e.g., H-4 dependents if the employee was in H-1B status, or L-2 dependents if the employee was in L-1A or L-1B status). This change may not be a problem if all those dependents are also I-485 applicants. A problem could arise, though, if the employee's I-485 is ultimately denied, leaving both the employee and his dependents without a work status to fall back on. Another problem might occur if the employee is unmarried at the time he gives up the H-1B status and later marries a non-U.S. citizen who is living outside the U.S. In such a situation, unless the new spouse has some independent basis for obtaining a U.S. visa, the spouse may need to wait several years before being able to join the I-485 applicant.

Can I change jobs? Portability for I-485 applicants.

Another work-related issue arises for employees who would like to change jobs, either by accepting a new position at their current employer or a job at a new company. When an employee files an employment-based I-485 application, he must have a good-faith intention of accepting the job that is the basis for the application (and the employer must have a good-faith intention of offering the position). This intention must be maintained throughout the time the application is pending. Does that mean an employee with a pending employment-based I-485 application cannot change jobs? The answer is no, but to change jobs, the employee must meet several conditions.

First, the I-140, Immigrant Petition for Alien Worker, that was filed by the original employer must already be approved. In addition, the individual's I-485 application must have been pending for at least 180 days.

Finally, the new job — whether with the same employer or a new one — must be in the "same or similar occupational classification" as the original job for which the I-140 was filed. While USCIS has not defined this phrase, the agency has apparently interpreted it fairly broadly. A person whose I-140 was filed for the position of programmer/analyst, say, would likely be able to "port" to a new job as a systems analyst, computer engineer, applications support consultant, and probably myriad other jobs within the general area of programming and systems analysis. On the other hand, it is unlikely for USCIS to accept someone porting from such a job to one as a historian or in another unrelated field. More difficult questions arise for job changes that are not as clear-cut as the above examples. For example, can a programmer/analyst change to a database analyst, or a computer engineer to an electrical engineer? Where the change is not as obviously within the same or a similar occupational classification, it is important to look closely at the duties of both jobs.

Persons whose I-485 applications are not employment-based (e.g., spouses and dependents of an employment-based applicant) do not have the same restrictions and can always work for any employer. Such applicants have that freedom because they do not have to maintain an intention of accepting any particular job.

Should I travel on my Advance Parole document or my nonimmigrant visa (H, L or other)?

In addition to being able to file an application for an Employment Authorization Card, an I-485 applicant may also file an I-131, Application for Travel Document, again either concurrently with the I-485 or at any time while the I-485 application is pending. Once the I-131 is approved, the applicant receives an Advance Parole (AP) document, which allows him to travel outside the U.S. and return to continue the I-485 process.

Generally, an I-485 applicant who does not obtain an AP document prior to departing the U.S. will be deemed to have abandoned the I-485 application; the I-485 application will, in turn, be denied by USCIS. However, for those with valid H-1B or L-1 status (or H-4 or L-2 dependent status), travel outside the U.S. without an AP document will not cause the I-485 application to be denied. In those cases, the person may re-enter the U.S. so long as he has a valid visa stamp that is still current (e.g., an H-1B, L-1, H-4 or L-2) and can demonstrate that he is returning to the U.S. to continue the H-1B or L-1 employment (or that he is the dependent of such a person). Individuals with another nonimmigrant status (e.g., O-1, E-3) do not benefit from this rule, and must obtain an AP document prior to departing the U.S. so as to not abandon the I-485 application.

Many persons with H or L status apply for and obtain an Advance Parole document even if they can re-enter the U.S. using a valid H or L visa. When a pending I-485 applicant with, for example, H-1B status also has an AP document and travels outside the U.S., he may re-enter the U.S. using either the H-1B visa or the AP document. It is important to note, though, that if the person re-enters using the AP document, he is technically no longer in H-1B status and will be able to work only with a valid EAC. This loss of status may occur when an employee has H-1B status but does not have a current H-1B visa stamp and forgoes obtaining a new one while traveling internationally. In such a case, the only way to re-enter the U.S. is to be "paroled" by using the AP document. This lapse can cause some unintended side effects, especially for dependents whose H-4 or L-2 status is contingent upon the underlying principal's H-1B or L-1. It is vital in these situations to consider carefully the effects of travel on both the principal's and dependents' work authorization and continued status in the U.S.

Will my I-485 ever be approved?

The path to permanent residence and obtaining a "green card" is almost always a slow process. There are usually three main steps in the employment-based permanent residence process: (1) a labor certification application is filed with the Department of Labor, (2) an I-140 petition is filed by the employer with USCIS and (3) the I-485 application is filed by the individual and his dependents. The I-485 can take months or years to be completed. Although it may sometimes be filed at the same time as the I-140 petition, USCIS will not process the I-485 until the underlying I-140 is approved. Often, I-485 applicants become understandably anxious once the I-140 is approved and wonder why the I-485 continues to be delayed for months and months.

One key to understanding possible delays is the State Department's Visa Bulletin, which controls, among other things, when a person who is applying for employment-based adjustment of status is allowed to do so. The Visa Bulletin lists priority dates for the various employment-based categories according to the applicant's country of birth. A person's priority date — the date on which the labor certification application was filed with the Department of Labor — must be "current" for the employment-based category that applies to the applicant's underlying I-140, Immigrant Petition for Alien Worker: Only individuals with a priority date on or before the date listed in the Visa Bulletin are currently eligible to apply for permanent residence.

The demand for permanent residence varies greatly, depending on the applicant's place of birth and the category in which he is applying. For example, the February 2008 Visa Bulletin shows that for most countries, the priority date for the EB-3 (employment-based, third-preference) category is October 1, 2001. That means an EB-3 applicant must have had a labor certification application filed on his behalf no later than October 1, 2001 — a waiting period of more than six years. Otherwise, a person in this category must wait until a Visa Bulletin shows a current date before being able to file the I-485.

By contrast, the February 2008 Visa Bulletin shows that an EB-2 (employment-based, second-preference) applicant from Mexico is "current," meaning that an applicant from Mexico who has had a labor certification application filed at any time may file an I-485 application. For a Chinese EB-2, the Visa Bulletin lists January 1, 2003, meaning a labor certification application filed on or before that date allows such a person to file an I-485.

Although many people were able to file I-485s during the summer of 2007 because the Visa Bulletin showed most categories as "current," the dates in the bulletin have since retrogressed—that is, they have been moved backwards. Unfortunately, in addition to controlling when a person may file an I-485, the Visa Bulletin also controls when USCIS will process the application. Hence, even if a person is able to file an I-485 at a given time, if the Visa Bulletin subsequently lists a later date, so that the applicant's priority date is no longer current, USCIS will not process the I-485 until the priority date becomes current again.

Even if the applicant's priority date is current, however, an I-485 can be delayed for other reasons, such as required security checks and requests for additional information by USCIS.

Conclusion

The process for an I-485 application for adjustment of status is often a long, complicated series of steps, and must be considered carefully. It is vital to understand the effects of filing an I-485 on employment eligibility and travel issues, both for the principal applicant and his dependents, if any. Despite the likelihood of a long process, a fully documented and well-managed application, with a clear understanding of the interaction of the I-485 with various matters — e.g., Employment Authorization Cards, Advance Parole documents, and employment portability—can be key to the applicant successfully obtaining lawful permanent residence in the United States.