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Employment-based Form I-485, Application to Register Permanent Residence or Adjust Status

2010 Fall Stakeholder Conference

Texas Service Center

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Introduction

Adjustment of status is a means by which an alien may obtain lawful permanent residence without leaving the United States.

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Introduction (Cont’d.)

When is an alien eligible for Adjustment of Status? 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

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Service Centers adjudicate employment-based 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

Introduction (Cont’d.)

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Who May File? An alien who is the beneficiary of an

approved/concurrently filed employment-based immigrant visa petition: 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.

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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

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Visa Availability A visa must be available at the time the Form I-

485 application is filed July 2007 Visa Bulletin

A visa must also be available at the time the applicant adjusts status

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

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Priority Dates

The applicant’s priority date and preference classification may be ascertained from one or more of the following: Page 1 of an approved visa petition I-797 Notice of Approval National Information Systems Local Information Systems

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Rules of Chargeability 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}

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Security Checks

Depending on case-specific factors, security checks may be required: FBI fingerprint check FBI name check Interagency Border Inspection System

(IBIS) NSEERS

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Properly Completed Form I-485

To be properly filed, the applicant must submit a completed and signed Form I-485 application, along with the appropriate fee. Is the application completed? Is there evidence that the fee was

collected? Is the application signed?

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Initial Evidence 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

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Form G-325A, Biographic Information

Form G-325A must be completed, signed and submitted by applicants between the ages 14 and 79.

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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:

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.”

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Form I-693 Form I-693, Medical Examination for

Aliens Seeking Adjustment of Status, must: 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

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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.

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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

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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 employment-based immigrant visa petition under INA § 203(b), because a parolee is not in a “lawful nonimmigrant status.”

Eligibility Under INA § 245(a)(Cont’d)

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Restricted Under 245(a) The following aliens are restricted from adjusting under

245(a): 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)

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Lawful Immigration Status The following aliens are considered to be in

lawful immigration status: 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 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).

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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:

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

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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

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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:

Failed to continuously maintain a lawful status

Engaged in unauthorized employment; or Otherwise violated the terms and

conditions of admission.

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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. 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

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INA § 245(i) (Cont’d) A “grandfathered” alien must satisfy the

following requirements: 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)

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Ineligible Under INA § 245*

Aliens who are not eligible for adjustment of status under INA § 245 include: 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

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Ineligible Under INA § 245 (Cont’d)

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

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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.

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Interview Requirement

Pursuant to 8 C.F.R. § 245.6: 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.

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Special Requirements A, E, or G Nonimmigrants 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.

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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.)

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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…”

Nurses Occupational Therapists Physical Therapists Speech Language Pathologists and Audiologists Medical Technologists Physician Assistants Medical Technicians

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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

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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

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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)…”

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Special Requirements Physicians serving in underserved areas

Alien physicians may apply for national interest waiver of the Department of Labor’s labor certification process. 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

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Special ConsiderationsChild 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.

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Special ConsiderationsAC21

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.

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Special ConsiderationsForm 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)

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Special ConsiderationsAbandonment 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

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Special ConsiderationsReligious 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.

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Special ConsiderationsDecisions

The applicant shall be notified of the decision of the director and, if the application is denied, the reasons for the denial 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)