Employment-based Permanent Residence (Part 3): Application for Permanent residence

Filing Green card application is the last stage of the long journey of employment-based permanent residence. For the applicants who are staying in the U.S. under non-immigrant status such as H-1B, TN, or F-1, they can apply for permanent residence by filing Form I-485 with USCIS. They do not need to leave the U.S.

For employees who are residing in countries other than the U.S., they need to go through consular processing by submitting DS-260 with NVC (National Visa Center) and by attending an interview in the U.S. Embassy or consular office in the foreign country where they are living.

As the third and last part of this series of Employment-based Permanent Residence, this article provides information on the process of application for permanent residence and potential issues in the process.

Process for Adjustment of status (for applicants in the U.S.)

To apply for a green card, the applicants who are already living in the U.S. have to change their status to permanent residence. Distinguishing from general change of status, change from a non-immigrant status to another non-immigrant status, the process is called “adjustment of status.”

For this process, applicants file Form I-485 which is the main green card application form. Depending on your EB case type, this Form I-485 can be filed simultaneously with the Form I-140 that we covered in the previous article.

In case you cannot file I-485 together with Form I-140, when you can file the Form I-485 is determined by “Visa bulletins” , an announcement from the Department of State and USCIS published monthly. As one requirement for this adjustment of status process, the applicant must maintain valid status until filing of the Form I-485 with few exceptions that I will go over in this article.

Together with the Form I-485, most applicants file Form I-765 for employment authorization (“work permit”) and Form I-131 for travel permit. There are no additional filing fees for those forms. These employment authorization and travel documents are for temporary purposes only, before approval of Form I-485 and issuance of your green card. These temporary permits have expiration dates, and they can be renewed if Form I-485 is still pending as of the filing date of the renewal applications.

When you file all these forms, you will receive receipt notices for each form. After that, USCIS will send you a biometric notice with a date and time set for you. When you attend the appointment, staff at USCIS field office will take your picture and fingerprints. You will have a green card interview at the same field office. After the biometric notice, USCIS will send another notice for the green card interview which is the last step of this journey of employment-based green card.

Consular processing (for applicants in foreign countries)

Applicants in the foreign countries have to wait until Form I-140 is approved. So, this might be a good reason for considering the use of premium processing to significantly reduce the waiting time. After Form I-140 is approved, NVC will contact you for the next step that is to be completed through their online portal.

For this NVC process, you have to fill out the form DS-260 and upload required documents. When you upload the documents, NVC will confirm you are “document qualified” meaning you submitted all the documents and it is ready now for your interview to be scheduled.

Before the document qualification, NVC may request resubmission of the documents that do not meet their standard. After that, the U.S. The Embassy or Consular office in the country where you are, will contact you for the interview. The interview is the last phase of the process, and once approved, applicants get immigrant visa stamps on their passport with which they can enter the U.S. as permanent residents. Their green cards will be mailed to their U.S. address after the first entry to the U.S.

Possible Issues,

Just like applications and petitions for other visa and immigration benefits, violation of immigration law and criminal record can be a serious issue in green card application. Green card applications will be denied if USCIS/Consulate office determines that the applicant is “inadmissible.” Well-known examples of such causes of inadmissibility include overstay, work without authorization, and other violations of terms and conditions of their non-immigrant status.

It is noteworthy that there is an exemption allowed for employment-based green card applicants. In employment-based green card applications, according to INA Section 245(k) Exemption, Form I-485 may not be denied, although there are reasons for inadmissibility, under certain conditions.

Applicants can request the exemption if aggregated dates of their violations do not exceed 180 days since their most recent entry to the U.S. When calculating the 180 days, days of each type of violation are counted separately, meaning that overstay and work without authorization for 60 days would count as 120 days. Also, the 180 days count from the most recent entry to the U.S. Violations before leaving and reentering the U.S. do not count for the purpose of this 245(k) Exemption. Lastly, this exemption does not guarantee 100% approval of the Form I-485. Approval of green cards is still discretionary as the law provides applicants “may adjust” despite the violations.


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