The final stage of the permanent residence immigration process is either an I-485 application to adjust status to that of a permanent resident, which is filed with USCIS, or an application for an immigrant visa, which is adjudicated at the U.S. consulate in your home country.
The articles in this section discuss the considerations in deciding between adjustment of status and consular immigrant visa processing, address the rights and responsibilities of individuals once they become lawful permanent residents of the U.S., and discuss the requirements for those interested in eventually naturalizing.
Becoming a Resident
Frequently Asked Questions
Green Card Quota Backlogs
WHAT IS THE “QUOTA BACKLOG”?
The Immigration and Nationality Act sets limits on how many green card visas may be issued each Fiscal Year (October 1 through September 30) in all visa categories. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually. If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the list according to the date of their case filing. This date is called a “Priority Date”. The priority date is the single, most important, factor in any immigration case.
WHAT ARE THE DIFFERENT EMPLOYMENT-BASED PREFERENCE CATEGORIES?
Employment-Based First Preference (EB-1)
Employment-Based Second Preference (EB-2)
Employment-Based Third Preference (EB-3)
WHAT DOES EB-1 MEAN?
Employment-Based First Preference (EB-1) includes: (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers.
WHAT DOES EB-2 MEAN?
Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Master’s or Ph.D.) (The position must be one that requires a Master’s or Ph.D. to perform the duties – the degree held by the individual does not determine whether or not it is an EB-2, rather it is the company’s job requirements. Additionally, the immigration regulations provide that a job which requires a minimum of a Bachelor’s Degree PLUS five years of progressively responsible experience will be considered equivalent to a Master’s level position and will qualify for EB-2.); and (2) Persons of exceptional ability in the sciences, art or business. Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected
WHAT DOES EB-3 MEAN?
Employment-Based Third Preference (EB-3) includes: (1) Professionals and skilled workers (bachelor’s degree or two years of training). The position must require a minimum of a bachelor’s degree or two years of training.
WHAT DOES “OTHER WORKERS” MEAN?
Other workers include positions that require less than two years of experience.
WHAT IS THE “PRIORITY DATE”?
If your category is employment-based and requires a labor certification, the priority date is established on the date a labor certification is filed under PERM. If your category is employment-based but does not require a labor certification, then the priority date is established on the date USCIS receives the I-140 Immigrant Visa Petition. However, the priority date does not attach to your case until the I-140 has been approved.
WHY IS THE PRIORITY DATE IMPORTANT?
In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being “current”. The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department’s monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. You may sign up online to have the Visa Bulletin automatically e-mailed to you by the State Department each month.
CAN I GET AHEAD ON THE QUOTA BACKLOG LIST?
There is no way to get ahead on the list, other than filing an Immigrant Visa Petition in a higher preference category, provided that the individual and/or their position meet the criteria to do so. Otherwise, the individual must wait until eligible to apply along with others on the list before proceeding with filing the last step in the green card process. The last step is accomplished by filing an application to adjust status to that of a lawful permanent resident in the U.S., or by obtaining an immigrant visa at a U.S. Consulate abroad.
THE I-140 FILED ON MY BEHALF WAS BASED ON A LABOR CERT SUBSTITUTION. WHAT IS MY PRIORITY DATE?
The Priority Date is determined by USCIS. We will know the Priority Date upon issuance of an I-140 Petition Approval Notice.
WHAT IS THE DIFFERENCE BETWEEN THE VISA CATEGORY BEING “U” (UNAVAILABLE) AND “MM/DD/YY” (QUOTA BACKLOG)?
Unavailable means that there are no more visas available at all for the month. If there is a date noted (i.e., 07-01-02), it is considered to be the cut-off date, and that means that there is a “quota backlog”. Only individuals who have a priority date earlier than the cut-off date may move forward with the permanent resident process.
WHAT DOES “C” MEAN?
“Current” – this means that there is no quota backlog in this category.
WHAT DOES IT MEAN TO BE “CURRENT”?
If there is a “C” in your employment-based category on the Visa Bulletin, then there is no quota backlog and you may proceed with your I-485 adjustment application or immigrant visa application.
IF THE VISA BULLETIN SHOWS A DATE OF 6-1-02 AND MY PRIORITY DATE IS 6-1-02, IS MY PRIORITY DATE CURRENT?
No. In order for the priority date to be current, it must be a date prior to the date published in the Visa Bulletin.
HOW OFTEN DO THE BACKLOGS CHANGE AND WILL THEY IMPROVE?
The priority dates considered “current” in each category are updated monthly by the Department of State, and are published in the Department’s Visa Bulletin (available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. The priority dates move forward and backward each month depending on the number of cases processed by the Department of State and by United States Citizenship and Immigration Services. While large movements do sometimes happen in order to use all of the available immigrant visas each year, we predict that backlogs will continue to be an issue unless Congress makes more immigrant visas available for skilled foreign nationals.
THE CUT-OFF DATE CURRENTLY LISTED IS FIVE (OR THREE AND A HALF, OR TWO) YEARS AGO. DOES THIS MEAN THAT IT WILL TAKE FIVE (OR THREE AND A HALF, OR TWO) YEARS BEFORE THE PRIORITY DATE WILL BECOME CURRENT?
No. It all depends on how many visas are used. Please see the answer to the above question.
I HAVE AN APPROVED I-140 PETITION WITH MY PREVIOUS EMPLOYER AND MY CURRENT EMPLOYER IS SPONSORING ME NOW FOR A GREEN CARD. WHAT IS MY PRIORITY DATE?
You may use the Priority Date attached to the approved I-140 Petition. The Priority Date will be printed in the top portion of the Form I-797 Approval Notice. You may use this priority date when you are eligible to file your adjustment or immigrant visa application based on your current employer’s green card process.
VISA AVAILABILITY IS BASED ON COUNTRY. IS THAT COUNTRY OR CITIZENSHIP OR COUNTRY OF BIRTH?
Your country of birth is what determines your country of chargeability.
MY SPOUSE WAS BORN IN A DIFFERENT COUNTRY THAN I WAS. SINCE THE I-485 IS BASED ON MY EMPLOYMENT, DOES MY SPOUSE’S COUNTRY OF BIRTH HELP ME?
Your spouse’s country of birth also may be used to determine chargeability. For instance, if you were born in India, but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse’s country of birth.
BOTH MY WIFE AND I WERE BORN IN INDIA AND MY PRIORITY DATE IS NOT CURRENT. OUR CHILD WAS BORN IN THE UNITED KINGDOM AND THE PRIORITY DATE FOR THAT COUNTRY IS CURRENT. CAN WE USE OUR CHILD’S COUNTRY OF BIRTH FOR ELIGIBILITY?
No. You can use your spouse’s country of birth for eligibility. However, your child’s country of birth cannot be used.
I HAVE HEARD THAT ONLY THOSE INDIVIDUALS FROM INDIA AND CHINA ARE SUBJECT TO QUOTA BACKLOGS. I WAS NOT BORN IN ONE OF THOSE COUNTRIES. DO QUOTA BACKLOGS APPLY TO ME?
Yes. Quota backlogs can apply to everyone, regardless of where they are from. While the backlogs have typically affected some countries more than others, note that on the current Visa Bulletin, the backlogs apply to all countries for the EB-3 preference category.
MY EMPLOYER HAS A LABOR CERTIFICATION PENDING ON MY BEHALF. DO QUOTA BACKLOGS AFFECT THE PROCESSING OF THE APPLICATION?
No. The labor certification process is not affected by quota backlogs.
CAN I CHANGE THE VISA CATEGORY AND/OR REFILE THE LABOR CERTIFICATION TO GET AROUND THE QUOTA BACKLOGS?
Maybe. The visa category of a particular filing cannot be changed once the labor certification (or I-140 if there is no labor certification) has been filed. Sometimes, starting the application again if your position or qualifications has changed can result in the new application having a more favorable preference category; however, that strategy is not possible in every case.
THE LABOR CERTIFICATION FILED ON MY BEHALF WAS APPROVED. CAN THE COMPANY STILL FILE THE I-140 PETITION IF THE PRIORITY DATE IS NOT CURRENT?
Yes. The filing and adjudication of an I-140 is not affected by the quota backlogs.
MY I-485 WAS ALREADY APPROVED. HOWEVER, MY DEPENDENT’S APPLICATION IS STILL PENDING AND MY PRIORITY DATE IS NO LONGER CURRENT. IS MY DEPENDENT’S APPLICATION AFFECTED BY THE QUOTA BACKLOG SINCE MY APPLICATION IS APPROVED?
Yes. Even though your case was approved, your dependent’s application is still based on your priority date. USCIS cannot approve the dependent’s application until the priority date is current.
THE QUOTA BACKLOGS WERE NOT IN AFFECT WHEN I FILED MY I-485 APPLICATION. DOES A QUOTA BACKLOG AFFECT ME?
Yes. USCIS can work on the pending application. However, it cannot approve the application unless the priority date is current.
THE I-140 AND I-485 WERE CONCURRENTLY FILED AND BOTH ARE PENDING AT USCIS. WILL THE I-140 BE PROCESSED IF THE PRIORITY DATE IS NO LONGER CURRENT AND THE I-485 CANNOT BE APPROVED?
Yes. USCIS will continue to process the I-140 and it can be approved regardless of the quota backlog
CAN I INQUIRE REGARDING THE STATUS OF AN I-485 CURRENTLY PENDING AT USCIS IF I AM SUBJECT TO A QUOTA BACKLOG?
No. Under USCIS guidelines, inquiries may not be made on a case unless the priority date is current.
IF MY I-485 APPLICATION IS STILL PENDING, AND MY PRIORITY DATE IS NO LONGER CURRENT, WILL USCIS STILL ISSUE A FINGERPRINT NOTICE AND/OR RFE?
It may. USCIS can still process the case but cannot approve it until the priority date is current. Therefore, you may receive requests for evidence or biometrics appointments. It is important to comply with these requests. Even though the case cannot be approved, it can be denied for failure to provide information or show up for biometrics.
MY I-485 HAS BEEN PENDING A LONG TIME DUE TO SECURITY AND BACKGROUND CHECKS. ONCE THEY CLEAR, CAN MY CASE BE APPROVED IF MY PRIORITY DATE IS NO LONGER CURRENT?
No. Even though the only issue may have been the security and background checks, USCIS cannot approve the case until the priority date is current.
DOESN’T USCIS ASSIGN ME A VISA NUMBER WHEN THE CASE IS FILED?
No. Immigrant visa numbers are not assigned to a case until right before approval.
CAN I STILL OBTAIN EAD CARDS AND AP DOCUMENTS IF MY I-485 IS PENDING AND I AM NOW SUBJECT TO A QUOTA BACKLOG?
Yes. As long as you have a pending I-485 application at USCIS, you are eligible to apply for and receive EAD and AP documents.
MY ADJUSTMENT APPLICATION IS PENDING AND I RECENTLY MARRIED. CAN I ADD MY SPOUSE TO THE APPLICATION (I.E., CAN MY SPOUSE FILE THEIR I-485) IF MY PRIORITY DATE IS NOT CURRENT?
No. In order to add a dependent to the pending application, the priority date must be current.
MY BIOMETRICS HAS ALREADY BEEN TAKEN. HOWEVER, DUE TO THE QUOTA BACKLOG, THEY MAY EXPIRE. WILL USCIS REQUIRE ME TO REDO MY BIOMETRICS?IF THE CASE IS PENDING AT USCIS AND CANNOT BE APPROVED DUE TO QUOTA BACKLOGS, WILL I BE REQUIRED TO PROVIDE ANY UPDATED INFORMATION OR DOCUMENTS?
Yes. Biometrics results expire after 15 months. USCIS will review the fingerprints at the time that they are ready to complete the adjudication of the I-485. If the results have expired, they will send out a new biometrics appointment notice.
IF THE CASE IS PENDING AT USCIS AND CANNOT BE APPROVED DUE TO QUOTA BACKLOGS, WILL I BE REQUIRED TO PROVIDE ANY UPDATED INFORMATION OR DOCUMENTS?
USCIS may ask for updated employment information. However, new photos and medical exams should not be required.
IF I AM NOT ABLE TO FILE THE I-485 DUE TO QUOTA BACKLOGS, IS THERE ANOTHER WAY FOR MY H-4 SPOUSE TO OBTAIN WORK AUTHORIZATION?
An I-765 (EAD) application cannot be filed unless an I-485 is pending. Therefore, your spouse will not be eligible for an EAD card and will need to seek employment sponsorship for work authorization.
IF THE I-140 PETITION FILED ON MY BEHALF IS STILL PENDING AND MY PRIORITY DATE BECOMES CURRENT, MAY I FILE MY ADJUSTMENT APPLICATION?
Yes, if you have an I-140 Petition pending and your Priority Date becomes current, you and your dependents may file your adjustment applications as long as the Priority Dates remain current.
I AM RUNNING OUT OF H-1B TIME. WHAT WILL HAPPEN TO MY H-1B STATUS IF THE QUOTA BACKLOG HOLDS UP MY GREEN CARD APPLICATION?
The AC21 legislation provided some relief in this area. If you have an approved I-140 and you are unable to proceed with the I-485 due to quota backlogs, the company is eligible to apply for extension of H-1B time, in increments of three years, on your behalf. Your dependent’s H-4 status may also be extended.
If you are not the beneficiary of an approved I-140 petition, you may still be able to obtain extensions, in one year increments, as long as the labor certification or I-140 petition have been pending more than 365 days.
IF I AM NOT ABLE TO FILE THE I-485 AND THEN LOSE MY JOB OR CHANGE JOBS, DOES AC21 PORTABILITY PROTECT ME?
No. In order to take advantage of AC21 portability, the I-140 Petition must be approved and the I-485 must be filed and pending over 180 days.
DUE TO THE QUOTA BACKLOGS, I WANT TO REVIEW MY OPTIONS FOR IMMIGRATING THROUGH A U.S. CITIZEN. I HAVE MINOR U.S. CITIZEN CHILDREN AND I HAVE A U.S. CITIZEN SPOUSE, CAN THEY SPONSOR ME FOR PERMANENT RESIDENCY?
Unfortunately, a child cannot sponsor you for a permanent residency until they are at least 21 years old. However, if you have a U.S. citizen child who is over 21 or a U.S. citizen spouse, please contact us to discuss your options.
Concurrent Filing – I-140 and I-485
What Is Concurrent Filing?
Persons seeking to immigrate to the United States as employment-based immigrants must complete two separate processes in order to become permanent residents. First, they must establish that they qualify in one of the employment-based immigrant categories, by filing Form I-140, Immigrant Petition for Alien Worker. Second, they must establish that they qualify for permanent residence under the general rules applicable to all immigrants, whether employment-based or not, which may be done in the United States by filing Form I-485, Application to Register Permanent Residence or Adjust Status, or from outside the United States by completing consular immigrant visa processing. In the past, persons had to wait for the U.S. Citizenship and Immigration Services (USCIS) to approve the I-140 before being able to pursue the second step of the process.
Concurrent filing, which became permissible under an interim rule announced on July 31, 2002, allows persons applying for permanent residence to submit the Form I-485, Application to Register Permanent Residence or Adjust Status, either along with a Form I-140, Immigrant Petition for Alien Worker, or after the I‑140 is filed but before it is approved, as long as there is no quota backlog in their immigrant category. Concurrent filing affects only the Adjustment of Status (I‑485) process, it does not affect those cases pursuing consular immigrant visa processing.
Must Concurrent Filing Be Used?
Absolutely not. An individual may continue to wait for approval of the I-140 before filing the I-485, and in many cases we advise that it is prudent to wait.
Who Is Allowed To File Concurrently?
Concurrent filing is available to individuals eligible to adjust to permanent resident status at the time an I-140 is filed on their behalf to classify them in the EB-1 category (alien of extraordinary ability, outstanding researcher, multi-national manager); the EB-2 category (advanced degree professional, national interest waiver; alien with exceptional ability); or the EB-3 category (professional or skilled worker). An immigrant visa number must be immediately available, meaning that the priority date must be current.
Persons who have engaged in unauthorized employment or otherwise violated their nonimmigrant status may not be eligible. Similarly, persons who are subject to the two-year home residence requirement are not eligible unless this requirement has been waived or the obligation has been fulfilled.
Can Form I-485 Be Filed After the I-140 Is Filed But Before It Is Approved?
Yes, once a Receipt Notice for the I-140 is issued, the I-485 can be filed along with this Receipt Notice and the petition and application will be matched up. This strategy may be advisable if the I-140 is ready to file, but the supporting documentation for the I-485 is not ready.
What Are the Benefits of Using Concurrent Filing?
One of the main benefits of concurrent filing is that it allows both the principal and his or her dependents to apply for employment authorization (EAD) and travel permission (advance parole). This ability to obtain employment authorization and travel permission is particularly important to those nonimmigrants approaching their maximum authorized stay in nonimmigrant categories such as “H” and “L,” as it may enable them to avoid violation of their status or the accrual of unlawful presence. In addition, the EAD allows job flexibility for the principal (ability to work without H, L or other non-immigrant approval) as well as travel flexibility (ability to travel without a visa).
Note that it is not always necessary for individuals to obtain both EAD and advance parole. For those maintaining H or L status, the advance parole can be used as a travel document and the H or L approval notice can be used to establish authorization to continue working for the sponsoring employer. EAD would only be required if the principal wanted to work beyond the scope of his or her H or L.
What Are the Risks of Using Concurrent Filing?
One of the main risks of concurrent filing is associated with not maintaining a valid, non-immigrant status. While proper filing of the I-485 does grant permission to remain in the U.S., it is not considered a non-immigrant status. Should the underlying I-140 be denied, the I-485 will also be denied, and applicants who have not maintained a valid, non-immigrant status will no longer have a lawful basis to remain in the U.S.
Issues relating to maintenance of status may be very complicated, and vary depending on the type of non-immigrant status each applicant holds. Therefore, it is very important to discuss potential risks to your or your dependents’ status before either deciding to file concurrently, or before deciding to use EAD or advance parole. In many cases, we advise maintaining a non-immigrant status at least until the I-140 is approved.
Will Concurrent Filing of an I-485 Result in a Faster Grant of Permanent Resident Status?
Not always. Because of constantly-changing processing times at the Service Centers and the dozens of consular posts which handle applications for immigrant visas, it is impossible to generally state that concurrent processing is always faster, or always slower, than consular immigrant processing.
If Concurrent Filing Is Not Used, Will It Delay the I-140 Adjudication?
To date, that has not been the experience of our office. However, how USCIS prioritizes cases is always subject to change.
Can Concurrent Filing Be Used If More Than One I-140 Is Filed on Behalf of the Same Beneficiary?If Concurrent Filing Is Used, and the I-485 is Eligible for Transfer from One I-140 to Another I-140, is there a Process to do so?
Yes, with a few caveats.
Generally, if an I-140 is filed seeking to classify a foreign national as an alien of extraordinary ability and a separate I-140 is filed requesting a national interest waiver for the same foreign national, he or she may submit, at the same time or subsequently, an I-485 with one of the I-140 petitions. USCIS has said that only one I-485 per applicant may be filed at a time. If more than one I-485 is pending, USCIS may request that one of the I-485s be withdrawn.
The first caveat is if the I-485 accompanies the extraordinary ability I-140, but the national interest waiver I-140 is approved first, USCIS will not transfer the I-485 to the approved I-140 until the extraordinary ability I-140 has been adjudicated. If the extraordinary ability I-140 is approved, the I-485 will, in all likelihood, also be approved.
If the extraordinary ability I-140 is denied, and the priority date for the national interest waiver I-140 is current, USCIS will usually, but not always, match the pending I-485 to the approved petition. If the extraordinary ability I-140 is denied, and the priority date for the national interest waiver I-140 is not current, USCIS will not transfer the I-485 to the national interest I-140. USCIS can only transfer the I-485 if a visa number is available for that I-140 petition. Therefore, when the extraordinary ability I-140 is denied, and the national interest I-140 is approved but the priority date is not current, the I-485 will be denied.
The second is if the I-485 accompanies the national interest I-140, and the extraordinary ability I-140 is approved first, again, USCIS will not transfer the I-485 until the national interest I-140 is adjudicated. If the national interest I-140 retrogresses, meaning the priority date is no longer current, USCIS can still transfer the I-485 to the extraordinary ability I-140 as long as the extraordinary ability I-140 remains current.
Finally, if the I-485 accompanies one or the other of the I-140s, and that I-140 is denied, and the other I-140 remains pending, USCIS may match the I-485 to the pending I-140 as long as the pending I-140 remains current. If this is missed by USCIS, and the I-485 is denied, it may be necessary to file a motion to reopen.
If Concurrent Filing Is Used, and the I-485 is Eligible for Transfer from One I-140 to Another I-140, is there a Process to do so?
No. There is no established process to transfer the I-485 from one I-140 to another. If there is a Request for Evidence (RFE) on the I-140 filed concurrently with the I-485, and another I-140 has been approved and is current, we can request that in the context of the response to the RFE. However, if there is no RFE, it is often extremely difficult and entangling to request such a transfer. While it is possible to make a request, it may take a long time, and may go unheeded by USCIS.
Should a Concurrent I-485 Be Filed When Approval of the I-140 Is Uncertain?
Maybe. In extraordinary ability, outstanding researcher/professor and national interest waiver cases where USCIS is required to make subjective judgments, one may decide to defer filing the I-485. The decision whether or not to file concurrently in these situations may depend on the need for ancillary benefits (EAD and advance parole), the relative strength of the petitions, the aging out of a dependent, or other personal concerns. If an individual’s continued authorized stay in the United States and authorized employment depends on the concurrent filing of an I-485 and EAD, such a filing should be made, but with the understanding that if the I-140 is not approved, the individual will no longer have a legal basis to remain in the U.S.
Are There Any Disadvantages to Concurrent Filing?
The considerations discussed above address most of the risks, advantages, and disadvantages of concurrent filing. One should take into account the financial cost, such as the filing fees and legal fees, associated with the filing of an I-485.
What Happens If the I-140 is Denied?
If the I-140 is denied, USCIS has no basis for approving the related I-485 unless there is a second I-140 pending. In that case, as described above, USCIS may “match” the I-485 to the second I-140, or we can try to alert them and request a transfer to a pending I-140.
However, the denial of the sole I-140 filed by a person will trigger a denial of the related I-485, either simultaneously with the I-140 denial or at a later date. With respect to individuals who have applied for an EAD and are authorized to work pursuant to a pending I-485, denial of the I-485 may result in USCIS revoking this employment authorization, usually through a Notice advising of the revocation. In addition, an individual dependent on the pending I-485 for authorized stay in the U.S. may have to leave if the I-485 is denied.
Does the Concurrent Filing Rule Affect "Portability?"
Maybe. “Portability” permits employment-based I-485 applicants to change jobs with their sponsoring employer, or to change employers, if USCIS does not adjudicate their I-485 within 180 days, as long as the I-485 applicant continues to work in the same or similar occupation. According to the current policy memo guiding adjudications, the clock starts ticking on the 180-day period as soon as the I-485 is appropriately filed with USCIS, not when the I-140 is approved. The safest approach before “porting” would be to wait until the I-140 has been approved, and the I-485 has been pending at least 180 days.