Frequently Asked Questions - Form I-485
- Ability to Pay
- Locating A Long-Pending I-485 Application and Priority Dates
- L-1 to GC
- Immigrant Petition and R-1 Visa
- Multiple I-140 Approvals and Linking to I-485
- Procedure for Filing the I-824
- I-140 Expedite requests
- I-485 Filed While Applicant is Outside United States
- Evidence of Legal Permanent Resident Status
- Expedited Advanced Parole
- Priority date retrogression -- consequences and concerns
- Spouse of an O-1 - next step to Green Card
- Questions regarding I-485
- Can I apply for H4 visa for spouse while on EAD?
- AOS interview next week, mother in India on AP
- AOS applicants applying for H-1 visa
- I-130 & I-485
- With I-485 pending can I be an investor ?
- How to check if I-485 received
- What would be derivative's status
- Green card under the Child Status Protection Act
- When can I apply for EAD?
- Quickest way to get a GC
- Pending I-485 and marraige
- File I-485 while J-1 waiver is pending
- Legality of I-485/I-130 filing
- AOS and EAD
- EAD restriction for 245i
- How to renew green card
- I130/485 for wife
- Birth Certificate Question
- EAD - Job title change on the same job
- Questions on AC21, EAD, losing job, etc.
- Turning 21 and I-485 pending
- I-485 pending and after 6 months laid off
- Current USCIS procedures for PD transfer and AOS
- Priority Date For Indians
- I-485 and Divorce
- I-485 AOS Pending, Employer's Bankruptcy
- Important questions on H-1, AP and Travel
- Working abroad while AOS pending
- Working for two companies on EAD
- AC21 - accepting a green card
- Leave of absence - I-485 pending
- Marriage to US Citizen with EB AOS is pending
- Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?
- What does AOS approval mean?
- Following to join
- Employment-based out of status protection for AOS - Section 245(K)
- I-485: pre-adjudication and employment verification letter
- Filing I-485 after I-130 approved
- Status, authorized period of stay and unlawful presence
- I-485 interview-- does arrest create a problem
- H-1 Extension based upon spouse's 140; Child born in USA
- EB-3 "Unavailable"
- GC future job; H-1 ext. revocation upon 140 denial, etc
- Converting from EAD back to H-1--Updated 6 April 2009
- Employers and Employees -- H-1 or EAD?
- H-1 and EAD
- I-485 Priority Dates and Processing Dates
- GC Compliance for Employers
- Starting business while in AOS/I-485/H-1/H-4
- Am I obliged to join my sponsoring employer after GC approval?
- Does chargeability change with citizenship change?
- Start-up applying for H-1 and AC21 for employees
- AC21 Portability and Related Issues
- Further questions on AC21
- Supervisory review
- AOS Pending, Should H-1 be Renewed
- Priority Date and AOS (Form I-485) Processing
- EAD and H-1 Conversions for Derivatives
- Gap in Employment during AOS
- AOS Denial – Consequences for H-1
- How do we keep up with the rumors and changes in the laws
- Automatic EAD extension; I-485 EAD
- What Happens to Existing Green Cards?
- Effect of Divorce on Employment-Based Immigration
- Remedy for Denial of I-485 AOS
- Effect of Divorce on an Employment-Based Case and Cross-Chargeability
- Changing Back to F-1 Student Status After Filing for Green Card
- Getting married when AOS I-485 is pending (following to join and other options)
- The Proposed I-140 EAD Rule - FAQ's
- What is I-485 Pre-adjudicate/Pre-adjudication and How soon must I join my future green card employer
- Writ of Mandamus against delay
- Priority date loss upon revocation of I-140
- Investment property while on H-1 (Buying and renting out a house)
- I-485 Rejected and B-2 Expiring
- Priority date port and multiple I-485/AOS petitions
- I-485/AOS/AC21 issues in job through future employer - I-485/AOS
- Applying I-485 On My Own
- Regarding Form G-884 (Returns of original documents)
- Change jobs without having to file for I-140 again
- How soon can I change employers after getting green card?
- Considerations for AC21 job portability
- Green card through two employers and future employer
- Enter USA while Green Card is Pending on B-1, B-2/H-1 Visa
- Procedure for Porting a Priority Date from One I-140 to Another
- Changing from EB-3 to EB-2 Category
- Changing Jobs During Green Card
- Obama's Immigration Action EAD At I-140 Stage
- Discrepancies In Date Of Birth Information
- Writ of Mandamus for Govt. Delays
- Traveling While I-485 Pending
1. USCIS says that it evaluates each consolidated financial statement on a caseby-case basis under the preponderance of evidence standard to determine whether the petitioner has the ability to pay the proffered wage.
2. USCIS says that, in this situation, the new employer is not obligated to demonstrate the ability to pay from the date of portability.
1. According to USCIS, if you have an old I-485 that has been transferred multiple time and you do not know where the case is, you should call USCIS. It is advisable to follow up in case no useful answer is forthcoming. USCIS aims to keep close control over its case inventory and tracks cases to make sure all the parts stay together and get adjudicated together.
It is also important for the attorney of record (using Form G-28) and the applicant (using Form AR-11) to keep USCIS apprised of any changes of address.
There is no problem with you paying the I-485 fees. But the employer must be involved to the extent that they need to provide a (truthful) letter evidencing continuity of your employment.
No. Religious workers are not permitted to file Form I-360 (immigrant petition) concurrently with Form I-485 (petition to adjust status to permanent resident). You must wait until your I-360 is approved before you can file you Form I-485.
If an I-485 is already pending, a newly approved I-140 can be linked to it by sending a written request to the USCIS. Include all information and relevant copies to clearly explain the transfer of the I- 485 petition to a different I-140 approval.
The I-824 needs to be filed concurrently. Once the I-485 approval is done, the I-824 must be adjudicated. Any further delays should be reported to USCIS.
No. It is required that the applicant be on U.S. soil when the application is submitted. For those applying from outside the United States, Consular Processing would be in order.
There have been no changes to this policy. USCIS does not issue ADIT stamps routinely as the applicant should be receiving I-551s within several weeks.
There has been no change to this policy. USCIS requires documentary evidence of the emergent situation, as well as supporting documentation indicating that the applicant has a pending application.
A 1. There are two possibilities. First, the case is not yet ripe for adjudication (for instance, it has not been assigned to an officer or the security clearances are not yet submitted or obtained), USCIS can shelf the case and not process it any longer untile the PD becomes current again. Second, USCIS can “preadjudicate” that case. That means the case is adjudicated and then shelved for PD to become current again. I do not believe there exists a mechanism currently to determine what USCIS will do with an individual case.
The way it works is that the company can file everyone's AOS (Form I-485) together OR they can first get your husband's I-140 approval and leave you to file the last step (AOS) for the family.
Answer 1: EAD is usally processed within 90 days and AP within 3-6 months. You can check I-131 processing times from links on this page: http://www.immigration.com/processin...-status-checks
Answer 2: A visa stamp is NOT required. Proper status only is needed.
You can have them apply for H-4 only if you go to an H-1 (you can). An F-1 is difficult if you have an AOS pending.
You need to contact USCIS customer service for guidance. Definitely put something down in writing that you are requesting a rescheduling. Maybe asking your Congressman's assistance is the best way to go for rescheduling.
We would highly recommend not applying for an H visa if it can be avoided. In the past few weeks, I have provided consultations to various employers on H-1 visa refusals. The refusals were ridiculous, illegal and would be overturned if there were an adequate mechanism for reversal. So, I see no point in applying for an H-1 visa. Even if you enter on AP and continue working for the original H-1 employer, you ARE considered to still be on H-1. All other matters are more or less ancillary.
No. You should be able to use the same I-485.
I see no problem with it, especially, if you are a passive investor who takes no action to manage or conduct the business of the entity invested in.
You can verify delivery (if sent by Fed Ex, UPS, etc.) and also check with your bank if your fees checks were encashed.
In my view, the moment of divorce takes away the right to be a derivative and hence also the legal right to have a 485 pending.
Your friend can apply for an unmarried child independently. Application of CSPA requires analysis of specific facts. I suggest your friend should consult an immigration lawyer for that.
This is a newbie question. :-) I-485 cannot be filed till PD is current and EAD cannot be obtained until I-485 is filed. H-1 is one obvious way for her to work.
Generally speaking, where there is a choice, we always file multiple green card applications for spouses.
If your priority date is current, you can file her AOS as long as she is legally in the US. I just have an issue with using F-1 visa to accomplish this purpose. Please consult with a lawyer about the details.
To the best of my knowledge that information is incorrect. You can file AOS only after the waiver is approved.
This is a touchy topic. As long as you revealed to the Post during your last entry that you were married, I see no problem with the 130/485 combo.
It looks like you have several options. Once 180 days of AOS pendency are over after I-140 approval, usually employers cannot hurt you. Speak with a lawyer.
Theoretically, there is nothing wrong with that, but speak with your lawyers. In my view, not working for the future employer raises issues like is there a job, do you really want to work for this employer, etc.
I do not see any problem if the 130/485 is filed during the 60 days following the F-1. In any case, she can and should apply for OPT.
As far as I can think, what your lawyers say makes sense only if your birth was not registered when you were born. If the registration was done recently, I would agree with your lawyers, otherwise not.
If you change your field/job description, it is very likely that you have to start your green card all over again. You should be able to carry the same priority date, but the PERM/I-140 may have to be done again.
2A. Yes, but you will then lose H-1 status (which can be revived by reentering USA using an H-1 visa during the life of your H-1 and taking up single-employer job with the H-1 sponsoring employer – not a difficult task, usually).
3A. Correct. You are in authorized period of stay. That has been explained in my blog.
4A. You can stay as long as CIS does not send an RFE or a Notice of Intent to Deny requiring you to prove similar, alternate employment (AC21 portability – also explained in detail on my blog).
Speak with your lawyers. You will be protected to some extent by CSPA.
The way I see it, until and unless your AP or 485 is revoked, it is legal to use both.
I would probably do nothing. Under current USCIS procedures, they scan an applicant for all existing I-140 approvals. You are then automatically assigned the earliest PD you are entitled to.
If the divorce occurs before the 485 approval, the derivative spouse is no longer entitled to a green card
1. If your job remains the same and regular salary continues to be paid I see no issue for H-1 or.
2. An amendment should be filed, though it is debatable if it is required.
3. In my view, AC21 port is easier.
1. I think I prefer AP. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left. Search the word "Cronin" on my blog .
2. No. See answer above.
3. It is impossible to predict times. Plan for a six-month turnaround.
4. Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.
5. Advance Parole and Passport.
1. An EAD is good to work on US soil only. If you wish to work in a third country, you have to look to their laws for work permissions. You should file an AC21 portability and make sure during your entire stay abroad you have at least your Advance Parole; preferable both your AP and H-1 visa.
2. As long as the permanent job continues to exist, there is no other requirement of presence.
3. I see no problem with visiting USA as often as you like.
1. Theoretically, you can work for as many companies as you like on EAD. My concern would be the implication that you no longer have a full time job with the sponsoring company, which is a requirement for the green card.
2. Since you are on a derivative EAD, you have even more freedom than the primary applicant. Other than an S corporation (I think that requires green card under tax laws), you can form any kind of corporation (LLC, etc.), but do check on the State law.
A1) There is no formal procedure other than joining, preparing a Form I-9, being on the payroll and actually working.
A2) You can behave like you would in any other permanent job - take vacations, etc.
A3) That question has been answered on my blog. See http://forums.immigration.com/blog.php?b=36
a). The first issue would be whether or not you still have a "permanent job" that would qualify you for a green card. In situations of long vacation, questions could be raised whether or not the green card job is indeed permanent; if so, who will do it in your absence; what is the reason for your leave; are you terminating your relationship with your employer, etc. If you have good answers to all these questions, you are fine.
NIW applicants get their green card based upon an expectation of employment - not employment (unless you are a physician). So, if you have a job offer in your area of expertise, your travel on AP is fairly safe.
A legal marriage in India is fully recognized in USA.
That example does not make any sense. It appears to be more a clarification of a concept - NOT practice. Do NOT worry. You are fine. If someone has not already done so, I will write USCIS next week after reviewing the entire 51 page memo carefully. Do NOT lose sleep over this.
Approval of AOS (Form I-485) means she is now a green card holder as of the date of the approval. The only thing she needs is the proof of that fact. You can take the approval notice, make an infopass appointment and ask that her passport be stamped with evidence that her green card has been approved. That stamp is as good as a green card. She can travel using that.
I am assuming the situation is that the husband's AOS is pending and he is using AC21 portability. That said, she is entitled to follow to join because she was (is) married to him before his green card got approved. There is NO requirement that a spouse must on a derivative visa (like H-4) in order to follow to join. She can follow to join even if she is outside USA, OR on F-1, H-1, L-1 or any independent visa. She will have to stay outside USA if her H-1 is denied, unless he revives his H-1 and brings her back on H-4.
Pursuant to section 245k of INA, an employment-based applicant and their family can file for an AOS (I-485) if they have been out of status or have worked without authorization for less than 180 days. The protection period is counted since the date of your most recent entry into USA. So if before filing I-485, you leave USA and reenter, you should have no issues. There are other ways to fix this also, but this is the most direct.
See attached USCIS Neufield Memo of 14 July 2008.
1. EVL can be asked for at any stage of AOS/I-485 process. It is REQUIRED when you submit the 485, but thereafter it is discretionary.
2. The main reasons are that USCIS has to make sure you still have a job and the job is "same or similar" to what was described in the labor cert (or I-140 for EB1).
3. This means your application has been reviewed and adjudicated to be approvable. So, USCIS is just waiting for the visa numbers to be current.
I think you can and there should not be any problem. As to where to file, call USCIS customer service. 1 (800) 375-5283.
Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.
Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.
Quote: I just got a letter from USCIS that I need to appear for a I-485 interview. I had applied my green card under the EB-XX. To update you i had an arrest record in 2005 for a domestic violence battery case, which was later dismissed in court. Also you might be aware my wife is currently in india, and we are under separation. She will join me on (XXX date) if she agrees for marriage counseling. Under these circumstances I had some questions which I wanted answers for: Please let me know your response.
Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?
Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
Correct. "Unavailable" means that it is the ESTIMATE of the State Department that visa numbers for India are exhausted for this fiscal year which ends on September 30. But the estimate may not always be accurate. DOS may go back and reopen this category if they need to (unlikely, but not impossible). Your green card can go on in your absence. That is no problem as long as we have answers to these questions: 1. Is the job really permanent? 2. Why is the employer accommodating you? 3. Who is performing the job in your absence?
Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.
Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.
Quote: I am currently on H1b status valid till may-2011 and have a valid EAD card, My I-485 is pending for over 180 days. My company has cut my position and may revoke my H1b. If I transfer my H1b to another company and then work on EAD. Will my H1b remain in the dormant status?
Quote: If yes, can i switch back to my H1b if i wish to? and what would be the process?( go out of country to get stamped?)
There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.
Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.
Qo. I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1B extension after its expiration on September 23, 2008 while I am working on EAD?
Ans. Generally speaking there is no time limit as long as you are entitled to the extension.
Qo. For example, will we have to file within 6 months or 1 year after September 23, 2008 while I-185 is still pending?
In a pending AOS (I-485), unless your PD is current, USCIS will not touch your application. Only when the PD becomes current, they start processing applications ROUGHLY in the order received.
Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?
Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.
1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.
You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.
Quote: 1) Do I need to inform company ‘B’ and be in their payroll with immediate effect?
2) If company ‘B’ cannot provide me a job in my location and offer the salary I demand, is it a valid reason for me not to join ‘B’?
3) How should I inform company ‘A’ about my green card and what is the best reason to justify my case to continue work with company ‘A’?
or Should I inform company ‘A’ only when I fill the I-9 form next year Jan 2010.
Still, India. Your chargeability follows the place of birth, not your citizenship.
H-1 by Start-up Companies
Both me & my wife have EAD and have our full time job. My question is , it is possible for us to start a new LLC ??
I would like to be on my H1B even with the new employer. To my knowledge we should file a new H1B within a month but due to the market situation if I have to get on to EAD then can I get back to H1B? If yes then with in how many days should I apply for H1B?
Pretty much anything can be within the context of a case. Supervisory review means just that - a review by a senior level adjudicator. Usually, that means there is some unusual procedural or legal issue involved. The good news is that, means your case is being reviewed, the bad, we don't know for what. You can try to go through a Congressman's office to find out more if you like.
Bottomline - I think H-1 should be renewed.
A little more info: A few months ago, I used to feel strongly that AOS applicants should keep their H-1 active for several reasons. Two of these are:
One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.
As of July 2008, this is how the system works.
First, let me provide a little background. Priority Date is the date your PERM is filed (in Case of EB-1 or NIW – the date your I-140 is filed; in case of Family-based petitions – the date your I-130 is filed.).
Qo1. Would it be advisable for my wife(secondary applicant) to change to EAD in case she gets a better employment with another employer? This employer is not willing to transfer H1.
Ans. That should be fine.
Qo2. All that is required to work on EAD is fill in form I-9 and submit a copy of EAD with it. Does the employer have to do anything like notifying USCIS etc?
Ans2. The employer has to do nothing more than prepare the I-9 and keep updating it every time new EAD is issued.
Q1. Is there any limit or restriction for number of days without work between changing job?
Ans. No. I do not believe a few weeks should make a difference.
Q2. Will this impact his GC process?
Ans. Not as long as he is eligible for AC21 portability.
Qo. If an AOS (adjustment of status or I-485) applicant has already used up six years on H1 and is currently in 8th year of H1, what are his/her options if AOS gets denied before the 8th year on H1 expires?
Ans. A lot depends upon the grounds of denial and whether they are likely to be overturned on a Motion to Reopen/Reconsider. Do note, there is no appeal against a 485 denial.
Nothing. The process continues. Changes in laws are not retroactive.
Question 1: Redo the PERM or just the I-140. If redoing the PERM again then what's new in this regulation?
Answer: After 180 days, you can extend H-1 even if 140 is withdrawn.
Question 2: It seems that there is no easy provision for EAD/AP for approved 140 applicants. So is there any point in waiting for this rule or Should I consider Visa stamping is only option for traveling outside US? Please suggest as I waited for a year or long thought they are going to give AP.
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
Question: What is I-485 Pre-adjudicate/Pre-adjudication?
You will need a confirmation of continued employment ("job letter") to file I-485. You should also put in a FOIA request to see you if you can get a copy of the I-140 approval.
Form G-884 is used to request return of documents YOU had sent to USCIS (e.g., your college degrees and diplomas). Use FOIA for the purpose you are considering.
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
I have heard that there is a proposal to allow filing of
That would lead to abandonment (sort of like cancellation of I-485). You will have to enter USA under some legal status (like H-4/H-1/L-2/L-1) and then file I-485 again when the priority dates becomes current.