2010 Fall Stakeholder Conference Texas Service Center Employment-based Form I-485, Application to Register Permanent Residence or Adjust Status 2010 Fall Stakeholder Conference Texas Service Center

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

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

Introduction (Cont’d.) 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

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.

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

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

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

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}

Security Checks Depending on case-specific factors, security checks may be required: FBI fingerprint check FBI name check Interagency Border Inspection System (IBIS) NSEERS

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?

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

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

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.”

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

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.

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

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

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)

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).

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

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

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.

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

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)

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

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

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.

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.

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.

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.)

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

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

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

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)…”

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

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.

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.

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)

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

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.

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 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)