FREQUENTLY ASKED QUESTIONS
October 2020 Adjustment of Status FAQs
Due to the unprecedented impact of the COVID-19 pandemic on immigration, in addition to presidential actions restricting immigration into the United States, green card quota backlogs will experience widespread improvement after the government’s new fiscal year (FY2021) begins on October 1st. This “silver lining” effect means a massive increase in the number of eligible green card applicants in October 2020. We are providing these FAQs to help our clients understand the green card application process in relation to this increased availability of immigrant visas. For a general overview of the adjustment of status process, please read our Employment-Based Adjustment of Status Process Overview & FAQs.
1. What is an adjustment of status (AOS)?
Adjustment of status (AOS) is the process by which a person who is lawfully present in the United States in temporary nonimmigrant status (e.g. H-1B, L-1, TN) may "adjust" their status to permanent resident ("green card") status based on an approved immigrant petition. The AOS process involves obtaining medical records, birth documentation, marriage and divorce documentation where applicable, and submitting these materials with the Form I-485, Application to Register Permanent Residence or Adjust Status to the United States Citizenship and Immigration Services (USCIS). For most folks being sponsored for an employment-based green card, the I-485 adjustment of status application is the third and final step in the process.
For a general overview of the adjustment of status process, please read our Employment-Based Adjustment of Status Process Overview & FAQs.
2. My green card category has been backlogged for a significant time. Why am I suddenly eligible to file in October?
Due to the slowdown of immigrant visa (green card) issuance, unused visa numbers from the family-based categories from last fiscal year will be added to this year’s employment-based (EB) visa allocation, increasing to approximately 261,500 from the normal annual quota of 140,000 immigrant visas. These unused numbers caused a massive movement in the backlogs for most employment-based visa categories. For more background on the October 2020 Visa Bulletin, please read our alert.
3. What are the benefits of having an I-485 adjustment of status application filed for me and my family?
There are many benefits of filing the I-485 adjustment of status application. Firstly, folks who have a pending adjustment of status are in valid status in the United States simply by virtue of the pending I-485 -- so, it is not strictly necessary to continue to extend and maintain nonimmigrant status (e.g. H-1B) once the adjustment is filed, although there are benefits to doing so.
Secondly, adjustment of status applications are eligible to apply for employment authorization (EAD) and advance parole (AP) documents as an ancillary benefit to having a pending green card application. The EAD/AP provides work and travel authorization based on the pending green card application, and can be renewed while the green card application is pending. For persons in H-1B status, this provides a valuable “backup” work and travel document, or a primary work and travel document should you discontinue extending your H-1B status. For dependent spouses and children, this can be a primary work and travel document.
There are other benefits to having an I-485 adjustment of status application on file, including facilitating changes in employers (“portability”) and easier international travel.
4. Can I continue to extend my H-1B/H-4/L-1/L-2 status after the I-485 adjustment of status application is filed?
Yes. For more information on this, please see our Employment-Based Adjustment of Status Process Overview & FAQs.
Visa Bulletin, Cutoff Dates and Priority Dates
5. What is my priority date?
For most people in the EB-2 and EB-3 categories, your priority date is the date your PERM Labor Certification was filed with the Department of Labor (DOL). For persons in the EB-1 category, your priority date is the date your I-140 petition was filed with the USCIS. In both cases, the priority date serves as your “place in line” in terms of the green card quota backlogs.
6. What if my application gets filed in October, and the cutoff dates retrogress in November?
Your I-485 application will continue to remain pending and be processed by the USCIS -- you will still receive receipt notices and be scheduled for your mandatory fingerprinting application. Your EAD/AP applications will also continue to be processed, and the USCIS will issue the EAD/AP card regardless of whether the cut-off dates retrogress in November.
7. Is it possible to predict the movement of cutoff dates in the near future? Do you think the current trend will continue?
The Department of State (DOS) Visa Office is predicting that the cutoff dates will continue to experience some forward moving in the coming months. However, it is very possible that due to the influx of applications the USCIS receives in October, that the cutoff dates will retrogress in November.
8. What does the October visa bulletin mean for people who have already filed their I-485 adjustment of status applications and are still waiting for approval?
The rapid advancement of cutoff dates in October is more relevant for persons filing their I-485 applications (Dates for Filing chart). Final approval of the I-485 is dictated by the Final Action Date chart. If your priority date is before the cutoff dates in the Final Action Date chart, the USCIS can approve your green card application in the given month.
9. What is an EB-3 “downgrade,” and how do I know if I am eligible?
Folks who have an approved I-140 petition with their present employer in the EB-2 category may be eligible to file their I-485 adjustment of status applications together with a new I-140 petition filed in the EB-3 category. This would be done if your priority date is not current based on the cutoff date for EB-2, but you are current based on the cutoff date for EB-3. Please note that eligibility to file an I-140 EB-3 downgrade petition is contingent on other factors, including approval from your employer.
10. Are there any disadvantages to downgrading?
No. If you are eligible to downgrade, and your employer approves, we strongly recommend filing your I-485 adjustment of status application this way.
11. Is the I-140 EB-3 downgrade petition filed at the same time as the I-485 adjustment of status application?
Yes. Both are submitted at the same time, in the same filing.
12. What happens if I downgrade to EB-3, and then EB-2 cut-off dates move ahead of EB-3 in the visa bulletin? Can I still benefit from my previously approved I-140 petition in the EB-2 category?
Yes. Your EB-2 petition will still remain valid, and you can still retain the same priority date. If the EB-2 category moves ahead in the future, it is possible to transfer the underlying benefit of your pending I-485 adjustment of status application to the EB-3 category.
13. What happens if I file my I-485 adjustment of status application under EB-2, and then EB-3 continues to be faster than EB-2? Can I downgrade to EB-3 later?
Yes. Similar to the above, it is possible to benefit from the EB-3 category at a later date.
14. I am eligible for an EB-3 downgrade, but my priority date is also very close to being current under EB-2. Should I wait until November to see if I can file under EB-2?
We can prepare your filing for an EB-3 downgrade and I-485 adjustment of status filing, and then wait for the November visa bulletin to confirm how to proceed. If the November visa bulletin is published, and you are still not current under EB-2, we can proceed with the EB-3 downgrade and I-485 filing. If not, we can simply file your I-485 application under EB-2, without the downgrade. Regardless, we advise you to prepare all the necessary documents in advance, as the I-485 application takes time to prepare.
15. How much time does it take for the I-140 EB-3 downgrade petition to be approved?
If your I-140 EB-3 downgrade petition is filed with regular processing, the processing times can vary, but it would likely take around 6-9 months. The downgrade petition does not have to be approved in order to file the I-485.
If your I-140 EB-3 downgrade petition is filed with premium processing, the total time will take around 6-8 weeks. With a downgrade petition, we do not file a premium processing request with the initial filing. The USCIS requires time to locate and match your downgrade petition with the certified PERM filed with your previous EB-2 petition. Accordingly, we generally wait at least 30 days to file a premium processing request for a downgrade petition, and the USCIS will then adjudicate it within 15 calendar days.
New Employment & Changes in Employment
16. I have a previously approved I-140 with my last company, but I have not started the PERM/I-140 with my new company. Is there any way to still file in October?
Unfortunately, no. You must be at the I-140 stage with your current employer in order to file an employment-based I-485 adjustment of status application. You can usually still, however, retain your priority date.
17. I have an approved I-140 with my current employer, but my job role has changed. Will this require a new PERM and I-140 filing, or can we move forward with the AOS application now?
We encourage you to contact our office, as this depends on a number of factors.
18. I have started the green card process with my current employer, but I am only at the PERM stage. Is it possible to file the I-485 adjustment of status application?
Unfortunately, we cannot file until your PERM is certified. Once your PERM is certified, assuming you are still “current” according to the visa bulletin, we can then file your I-140 immigrant petition together with your I-485 adjustment of status applications. If you would like to begin preparing documents, we encourage you to read our Employment-Based Adjustment of Status Process Overview & FAQs and Public Charge FAQs, although we do not advise you collect medical exams or photos until instructed by our office, as they may no longer be valid by the time you are eligible to file.
19. I am the principal applicant of my employment-based I-485 adjustment of status application. If I start using my pending AOS-based EAD card, and then my employment is terminated voluntarily or involuntarily, do I need to do anything to maintain legal status in the United States?
If your I-485 adjustment of status application has been pending for at least 180 days, in order to maintain the green card process for you and your dependents, you will need to find a new position in a “same or similar” occupation as the position outlined in your I-485 adjustment of status application. Your new employer will need to sign a Form I-485, Supplement J confirming the role is in the same or similar occupation. There is no specific time frame by which this must be done -- so long as you secure this new role by the time the USCIS requests the Supplement J by way of a Request for Evidence (RFE), or the final green card interview, this should be fine.
20. My spouse has a green card process with his/her current employer, and his/her priority date is also becoming current in October. Should I file as a dependent of his/her application, or should he/she file as a dependent of mine? Should we both file independently?
Generally, we recommend that you both file your I-485 adjustment of status applications independently of each other, meaning that you both act as the principal applicants of your own I-485 application. Please note that this does not mean that you have multiple I-485 applications on file with the USCIS, which we do not recommend. It is generally advantageous for both of you to file independently so that one application can act as a “backup” to the other. If your spouse’s priority date is sooner or later than yours, it is possible to “match up” your pending I-485 adjustment of status application with your spouses, or vice versa.
21. Is it possible to file for myself now, and add on my spouse later, if my spouse needs additional time to collect documents, or is outside of the country?
If you are currently married, and you and your spouse are both in the United States, we strongly encourage you to try and file together at the same time, as the cut-off dates may retrogress after November, and your spouse will not be able to file until your priority date becomes current again. If your spouse is currently outside of the United States, we encourage you to contact our office to review.
22. Does an I-485 application need to be filed for my U.S. citizen child?
No. However, information and documentation regarding your child must be provided on Form I-485, as well as the Form I-944 for the public charge requirement, as explained below and in our Public Charge FAQs.
23. Do I need to be in the United States to file my application? Do my family members need to be here?
Yes. You and all dependent family members applying with you must be physically present in the United States when the I-485 adjustment of status applications are filed.
For a general overview on traveling while your adjustment of status application is pending with the USCIS, please read our Employment-Based Adjustment of Status Process Overview & FAQs.
24. I need to travel internationally in the next 6 months. Is it okay if I travel once the I-485 application is pending with the USCIS?
At this time, we strongly advise that you avoid international travel without thoroughly consulting with our office. This depends on your current nonimmigrant status, the validity of the visa stamp on your passport, and the status of various COVID-19 related travel restrictions and presidential actions at the time of your anticipated trip. Please also note that you need to be present in the United States for your mandatory fingerprinting appointment. Generally speaking, this is usually scheduled by the USCIS around 3-4 weeks after the I-485 application is filed. However, due to the influx of applications in October, as well as COVID-19 related processing delays, this may take several weeks or longer than normal.
Please note that individuals in certain statuses, such as F-1 students, TN USMCA workers, and O-1 Aliens of Extraordinary Ability, should not travel until the Advance Parole (AP) is approved by the USCIS.
25. How long will it take to get my biometrics appointment scheduled after the I-485 application is filed?
At this time, this is difficult to predict. Usually, the USCIS schedules biometrics appointments around 3-4 weeks after filing. However, given the influx of applications being submitted in October, as well as local USCIS Application Support Centers (ASC) still working through COVID-19 processing backlogs, it is possible that it may take several weeks longer to be scheduled for your appointment.
26. How long will it take to get my EAD/AP combo card?
Similar to the above, this is difficult to predict at this time. Usually, processing times for pending AOS-based EAD/AP cards take around 3-5 months. However, due to potential backlogs with biometrics appointments, as well as the increased volume in application filings, the USCIS may take longer to issue your EAD/AP cards.
27. How long will it take to get my green card?
The green card takes 8-12 months at minimum, but final approval of the I-485 adjustment of status application depends on other factors (Final Action Date chart, interview scheduling). EAD/AP generally takes 3-5 months, but could take longer due to processing times and biometrics scheduling. As noted above, USCIS processing times can fluctuate significantly, depending on the USCIS’ case load, COVID-19-related issues, and other variables.
28. Is it possible to file an I-485 with premium processing?
No. Premium processing is only available for the I-140 immigrant petition.
EAD & Advance Parole
29. If my spouse is on an H-4 dependent visa, and is currently working on an H-4 EAD, will her/his H-4 status or H-4 EAD employment be impacted once he/she receives a pending AOS-based EAD?
No. Your spouse’s H-4 status, and H-4 work authorization, is still valid once the EAD/AP combo card based on the pending I-485 adjustment of status application is issued. As a practical matter, as many folks are aware, the current Administration has indicated plans to rescind the H-4 work authorization program. Accordingly, it is important that folks who are working on H-4 EADs apply for EAD cards based on their pending I-485 adjustment of status, and continue to renew them.
30. My spouse is in H-1B status and filed his/her I-485 adjustment of status application as my dependent. Can he/she change jobs while the EAD/AP is pending?
Yes, so long as your spouse is going to be sponsored by the new employer for an H-1B. Your spouse will not be able to accept new employment based solely on the EAD until the application is approved.
31. Is there a comprehensive list of documents required for the AOS application?
Yes. Please see our Employment-Based Adjustment of Status Process Overview & FAQs. In addition, all green card applications are required to provide documentation for the public charge requirement on Form I-944, as explained below. For a list of documents required for the public charge, please see our Public Charge FAQs.
32. I cannot get my medical exam by the end of October. Can we still file?
Yes. The sealed medical report is not required to submit with the initial I-485 adjustment of status application. Prior to the pandemic, the USCIS issued a courtesy notice to applicants to obtain their medical report prior to their interview scheduling. As of October 2020, the USCIS has been issuing Requests for Evidence (RFEs) for the medical exams. In both cases, the USCIS asking for the medical reports is generally a good sign, as it indicates that the USCIS is preparing to schedule the final green card interview, or is otherwise advancing to the final stages of adjudication.
33. I did not get my medical exam report in October. Should I secure it after filing?
No. We recommend waiting until the USCIS requests it. Medical exams are only valid for (2) years, and depending on processing times and other variables, it is possible that you will have to obtain new medical exams if you do so too early in advance.
Birth & Marriage Documentation
34. What are the rules for birth documentation?
An acceptable birth certificate must be issued by an appropriate government authority, i.e. one charged with the responsibility for keeping birth and death records for that municipality, and must include the following information:
Name of child
Date of birth
Place of birth
Full name of father
Full name of mother
For more information on this, please see Page 7 of our Employment-Based Adjustment of Status Process Overview & FAQs. You should also refer to the Department of State Reciprocity and Civil Documents by Country for the type of acceptable form of birth documents from your country of birth.
35. My birth and/or marriage certificate is not in English. Do I need to use a translation service?
No. We will obtain translations on your behalf that meet the USCIS’ requirements for translated non-English documents. Please note that notarial birth certificates from China typically include an English translation.
36. Do I need my original birth certificate and/or marriage certificate, or will a photocopy and/or scan suffice?
At the time of filing, we only need to submit a scanned copy. However, you must secure the original document / original certified copy with visible stamps, and should do so well in advance, as the USCIS may issue a Request for Evidence (RFE) to submit the originals, and you will be required to present the original document if you are called in for your final green card interview.
37. I cannot get my birth certificate or marriage certificate by the end of October. Can we still file?
Unfortunately, no. We have to submit some type of acceptable documentation with the initial filing (e.g. letter of nonexistence from local authorities with affidavits from both parents). If you cannot obtain your birth record from the appropriate civil authorities, your next step should be trying to reach out to the local consulate. If that is unsuccessful, please reach out to us immediately so we can assist you on a case-by-case basis. Regardless of what we submit in the initial filing, you must be able to provide your original birth record that meets the Department of State Reciprocity table noted above, as the USCIS will request it sometime after the I-485 adjustment of status application is filed, either via RFE, or at the final green card interview.
38. I was born in India. My birth certificate is unavailable, has been destroyed, and/or the local authority will not issue it to me. What should I do?
If you were born after April 1, 1970 and are unable to obtain a birth certificate, or your birth was not registered, you must obtain a certificate of non-availability from the local authorities with jurisdiction over your place of birth. In addition to the certificate of nonavailability, you should submit secondary evidence of your birth such as two (2) affidavits from your parents, hospital records, school-leaving certificate, or matriculation certificate which lists your name, date of birth, place of birth, and names of parents. Please contact us immediately if you are unable to obtain this evidence. For more information on this, please read our Indian Birth Affidavit Memo.
39. I was born in India. My birth certificate is incomplete (e.g. details are missing, the name does not match my passport, my name is only indicated as initials). What should I do?
We will submit the birth certificate, together with at least one (1) affidavit from a parent and secondary evidence that provide the missing or incomplete information, such as hospital records, school-leaving certificate, or matriculation certificate, or any government-issued identity documents. Please contact us immediately if you are unable to obtain this evidence. For more information on this, please read our Indian Birth Affidavit Memo.
40. I was born in India. I have my birth certificate, but it was registered years after my actual date of birth. What should I do?
Submitting the birth certificate with delayed registration with the initial I-485 adjustment of status application should be sufficient for filing purposes. However, you may be required to provide secondary evidence regarding your birth and an explanation as to why your birth record was registered late, so you should be prepared to obtain an affidavit to explain the delayed birth registration, in the event that the USCIS issues a Request for Evidence (RFE), or if you are scheduled for an in-person interview. For more information on this, please read our Indian Birth Affidavit Memo.
41. I was born in China. For notarized birth certificates from China, do they need to be apostilled and/or authenticated by a consulate? Are the notarized certificates sufficient?
Generally speaking, if the birth certificates contain all the notarized stamps, and meet the other requirements noted above, the notarized certificates should be sufficient. Please refer to the Department of State Reciprocity table for instructions. For China, a notarial birth certificate from the local Notary Public Office (Gong Zheng Chu) contains a watermark, seal, and red stamp. It indicates the applicant’s name, gender, date of birth, ID number, place of birth, and both parents’ names.. All notarial documents must have an English translation, and be attached with a certificate stating that the English translation is in conformity with the Chinese original.
42. What is the public charge requirement, and why do I need to provide documentation for this with my I-485 adjustment of status application?
The “public charge” inadmissibility issue is not new under U.S. immigration law – it has always been the case that immigrants to the United States have to prove that they will not become dependent on government aid. However, green card applicants now have to submit Form I-944 and extensive documentation together with the I-485 adjustment of status application, as evidence that they will not become dependent on government aid. We know that the public charge documentation and information is onerous, but it is unfortunately required for you and each dependent applying with you, including minor and infant children.
For more information on the documentation required for public charge, please see our Public Charge FAQs.