ADJUSTMENT OF STATUS

Employment-Based Permanent Residence Procedures

I. Employment-Based Visa Petition (Form I-140)

Processing at the US Citizenship and Immigration Services (USCIS) begins with the filing of Form I-140, signed by the employer.  In reviewing the petition and documents, the USCIS makes a determination that the employer has the financial ability to the pay the prevailing wage, and that the employee has submitted adequate proof of the education and experience to meet the job requirements.

 II. Adjustment of Status Procedure (Form I-485)

For certain countries such as China and India, visa numbers may not be immediately available in the applicants' preference category.  One’s place in line is set by the filing date of either: 1.) the labor certification or 2.) if the labor certification is waived, then the I-140 receipt date.  This date is known as the priority date, and until the priority date becomes current (visa availability), one must continue working on a temporary visa until an immigrant visa number becomes available, a pre-requisite to applying for I-485 adjustment of status. 

If the priority date is current, this I-140 visa petition may be filed concurrently with Form I-485 (Application for Adjustment of Status), and the alien employee’s immediate family members under the age of 21 may also simultaneously file their own I-485 applications for permanent residence. 

Maintaining non-immigrant status while Adjustment of Status is pending

The EAD card provides free-market work authorization and the Advance Parole allows convenient travel flexibility during the pendency of the adjustment of status application.  Nevertheless, we recommend that the I-485 applicant maintain nonimmigrant status (such as H-1B or L-1) throughout the period until the I-485 has been approved. 

Basic Requirement and Processing Times

Employment-based applicants who have been "out of status" for even one day following their most recent entry into the U.S. may be ineligible to apply for permanent residence in the U.S. and may be required to return to their home country to apply for permanent residence.  Therefore proof that lawful presence has been maintained is submitted with the application.

IMPORTANT: The applicant and all immigrating family members MUST be physically present in the US at the time the Adjustment of Status is filed. If you or any of your family members will be traveling, please notify our office when you send in your documents, or as soon as possible thereafter.

Processing times vary for the adjustment of status application.  Within a few months after filing, the applicant is sent a biometrics appointment notice to be fingerprinted and photographed at the local Application Support Center (ASC).  Most employment-based adjustment of status applications are approved by the USCIS Regional Service Center without interview.  However, The USCIS randomly refers a small number of cases to the local USCIS office for a personal interview.