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Form I-485 (adjustment of status)

Form I-485 is used to adjust your status to permanent residency (green card holder), but you must meet eligibility requirements to apply in the United States.

What is Form I-485

Form I-485 is the legal document you use to apply for permanent residence while living in the US if the 2 following situations apply to you. To file this form, you meet the eligibility requirements to apply for a green card.

Who should use form I-485

Here are some of the most common reasons you may need to file form I-485

  • When you arrived in the US, you had a temporary visa, but later married a US citizen.
  • You came to the US on a work visa, and your employer decided to help you get a green card.
  • You were granted asylum in the US.
  • You first came to the US on a fiancé visa, and your wedding took place before your visa expired.

Who should not use this form

If you are still unsure about whether I-485 is the right form for you to fill out, consider that if any of the following situations apply to you, you should not use form I-485:

  • You are in the US because you stayed here longer than your temporary visa allowed. You also do not have any immediate relatives who are US citizens.
  • You entered the US without inspection. This means that no immigration officer met you when you first arrived.
  • There are other legal issues that may stop you from being granted a green card.

If you are not eligible to fill out the I-485 form, this does not mean that you have no way to get permanent residence status. You may be eligible to apply for a green card after returning to your home country.

Where to file

To properly adjust your I-485 status, you will have to know where you should file the form. There are different categories of immigrants, and which category you fall into will determine where you file your I-485 form. For example, if you are filing the form because you recently married a US citizen, you would file it in a different place than if you were a special immigrant religious worker.

Because the proper place for filing I-485 may change from time to time, it is important that you check the latest USCIS guidelines before you file your form.

Filing fees

The amount it costs to file the I-485 form depends on a few factors, including your age and the reason for your immigration.

  • If you came to the US as a refugee, fleeing your home country, you may file I-485 at no charge.
  • Immigrants who are under 14 years of age and are filing with one of their parents will have to pay $635.
  • People aged 14 to 79 must pay $985. For this group of people, there is an additional $85 fee for biometric services. Biometric services refer to the process that the government uses to record your fingerprints.
  • For elderly people who are over the age of 79, the $985 fee still applies. However, there is no biometric services charge.

Since most people who file I-485 are between 14 and 79, you can expect to pay a total of $1,070 when you submit your form.

Other forms you may need to file

Depending on your situation, there may be other paperwork that you are required to file around the time you submit your I-485.

Either before or at the time you file, someone else will have to file a petition on your behalf. If you are immigrating to be with your family, they will have to file form I-130. On the other hand, if you are moving to the US for work, your employer must file form I-140.

Carl Michael Shusterman | Nov 26, 2019

VISA BULLETIN PREDICTIONS U.S. DEPARTMENT OF STATE

Visa Bulletin Predictions by DOS’s Charlie Oppenheim (11-19-19) Important News Concerning EB-2 Worldwide & EB-3 Worldwide: For December 2019, both EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, the Philippines and Vietnam) and EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, the Philippines and Vietnam) remain current. Section E of the December 2019 Visa Bulletin warns that “a steadily increasing level of Employment-based demand for adjustment of status cases” at USCIS could require establishment of Final Action Dates in the EB-2, EB-3, and EB-3 Other Worker categories as early as January 2020. Final Action Dates may be established for one or more categories as early as January 2020 due to unusually heavy demand totaling over 11,000 EB-2 applicants and over 13,000 EB-3 applicants. Charlie noted that if instead the level of demand shows signs that it is subsiding, such that these high numbers merely represent pent up demand from the recent summer retrogressions, these categories could remain current. However, in an abundance of caution, and because Charlie does not yet have data to indicate that this demand trend will slow down, he wants the public to be prepared for possible implementation of Final Action Dates as early as January 2020. In light of the possible retrogression, AILA advises members to consider filing any eligible EB-2 Worldwide and EB-3 Worldwide adjustment of status applications prior to the end of the calendar year. Scheduled Expiration of EB-4 Certain Religious Workers (SR) and EB-5 Regional Centers (I5 & R5): The December 2019 Visa Bulletin lists all EB-4 Certain Religious Workers (SR) and all EB-5 Regional Centers (I5 & R5) as unavailable or “U” for December since these categories were set to expire on November 21, 2019 unless reauthorized by Congress. On November 21, 2019 President Trump signed a short-term continuing resolution through December 20, 2019. As Congress has taken action to reauthorize these programs, the Final Action Dates for December will be as follows: The December 2019 Visa Bulletin lists all EB-4 Certain Religious Workers (SR) and all EB-5 Regional Centers (I5 & R5) as unavailable or “U” for December since these categories were set to expire on November 21, 2019 unless reauthorized by Congress. On November 21, 2019 President Trump signed a short-term continuing resolution through December 20, 2019. As Congress has taken action to reauthorize these programs, the Final Action Dates for December will be as follows: EB-4 Certain Religious Workers (SR) - July 1, 2016 for El Salvador, Guatemala and Honduras - July 22, 2017 for Mexico - Current for all other countries EB-5 Regional Centers (I5 & R5) - November 15, 2014 for China - January 1, 2018 for India - December 1, 2016 for Vietnam - Current for all other countries Visa Bulletin Predictions – Family-based Preference Categories The F2A Final Action Date, which has been current since July 2019, remains current across all countries through December. Charlie remains baffled by the excessively low demand in this category so long after it became “Current”. The data available at this time indicates that F2A should remain current for the foreseeable future. Movements in the remaining family-based categories remain as predicted. Last month, Charlie mentioned that as a result of low demand, family-based Final Action Dates may move forward at a faster rate than reported in the October 2019 Visa Bulletin. Also, as mentioned in last month’s Check-in with Charlie, due to a high-level demand for family-based categories for Mexico (outside of F2A), limited movement should be expected for the foreseeable future. There is significant USCIS demand across the family-based preference categories for Mexico. There has been a significant increase in demand for F4 visas across the board since October 2019. It is too early for Charlie to be sure if this is a new trend or if the demand will start to slow down. For now, he expects that movement may slow, but does not anticipate any need for retrogression in the near future. Charlie also reports that applicants are still failing to become documentarily qualified as quickly as they could be. As long as this continues, expect continued forward movement of the applicable final action dates. When additional demand ultimately starts to materialize in the family-based categories, Charlie cautions that the relatively rapid advancement in many of the these categories over the past fifteen months could slow down due to a need for corrective actions. Based on current demand trends, Charlie stands by his most recent predictions. Visa Bulletin Predictions – Employment-based Preference Categories EB-1: In December 2019 Final Action Dates for EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) advances 6 weeks to July 15, 2018. EB-1 China advances 10 weeks to May 15, 2017, and EB-1 India’s Final Action Date holds at January 1, 2015. All of these movements are consistent with Charlie’s projections which were provided in the October 2019 Visa Bulletin. In contrast to the unexpected and excessively high demand in EB-2 and EB-3, Charlie continues to see a normal, if not somewhat low, demand level in the EB-1 Worldwide category. Therefore, he maintains his prediction that EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) will continue to advance at a pace of up to 3 months for the foreseeable future. EB-2: As noted above, EB-2 Worldwide (including EB-2 El Salvador, Guatemala and Honduras, EB-2 Mexico, EB-2 Philippines, and EB-2 Vietnam) remains current for December, but could retrogress as early as January 2020. Consistent with Charlie’s predictions, in December the Final Action Date for EB-2 India advances 2 days from May 13, 2009 to May 15, 2009. EB-2 China advances about 2 months in December to June 22, 2015, with the gap between the final action dates for EB-3 China (November 1, 2015) and EB-2 China, narrowing to just over 4 months. EB-3: As noted above, although EB-3 Worldwide (including EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, and EB-3 Vietnam) will remain current in December, there is a real possibility that this category could have a final action date imposed as early as January 2020. EB-3 China continues to hold at November 1, 2015 for December, while EB-3 China Other Workers advances 1 month to March 1, 2008. Both EB-3 India and EB-3 Other Workers India hold at January 1, 2009 for December. EB-3 Philippines and EB-3 Other Workers Philippines advance 1 month to March 1, 2018 for December. These categories used a significant amount of numbers thus far this fiscal year but not so much as to cause a change to Charlie’s predictions just yet. In the foreseeable future, it is more likely that there will be a slowing of advancement in this category in an attempt to prevent the need for a future retrogression of the Final Action Date. Charlie notes that EB-3 Mexico and EB-3 Other Workers Mexico demand is extremely high, having already used since October 2019 about 75% of the volume of numbers used by Mexico in all of FY19. While this may represent a recovery, the volume seems excessive for this to represent only pent up demand. Charlie will watch these categories closely. EB-4: As expected, the Final Action Date for EB-4 El Salvador, Guatemala and Honduras continues to hold at July 1, 2016 for December, and EB-4 Mexico will also hold at July 22, 2017. All other countries (EB-4 Worldwide, including China, India, Philippines and Vietnam) remain current. Please see above for information regarding EB-4 Certain Religious Workers (SR). EB-5: In December EB-5 China (C5 & T5) advances 2 weeks to November 15, 2014, EB-5 India (C5 & T5) advances to about 3 weeks to January 1, 2018, and EB-5 Vietnam (C5 & T5) advances 2 weeks to December

Carl Michael Shusterman | Nov 15, 2019

USCIS Proposes Huge Filing Fee Increases

Increase in Filing Fees Filing fees for adjustment of status and for naturalization would increase dramatically. Adjustment of status applicants would have to pay over $1,000 extra in order to cover the costs of applying for EAD work permits and AP travel documents. The total filing fee for an I-485 packet would be $2,195. In addition, adjustment applicants would have to pay each time that they renew their work and travel permits. The new naturalization fee would be $1,170, an increase of 83% from the current fee. When I worked for the INS, the fee for filing an application for naturalization was only $15 and I had to interview 14 applicants and 28 witnesses per day. Why should a 30-minute interview cost over $1,000? Is this just a political ploy to keep immigrants from becoming US citizens and voting? Employers sponsoring persons for H-1B and L-1 visas would also see large fee increases. The fee for filing an H-1B petition would increase to $560 while the fee for filing an L petition would increase 77% to $815. Employers with a high proportion of H-1B or L employees would be saddled with paying an additional border security fee of $4,000 to $4,500 per petition. Assuming DACA is still in existence when the fee increases take effect, the DACA renewal fee will rise to $765, a 55% increase. For the first time, many asylum applicants would no longer be exempt from paying filing fees. There would be a $50 fee imposed on persons applying for asylum or withholding of removal. In addition, they would, for the first time, have to pay a fee of $490 in order to apply for an EAD work permit. Only 3 other countries in the world charge filing fees for first-time asylum applicants: Iran, Fiji and Australia. A fee for asylum applications could prevent many persons in immigration detention from filing I-589s since they earn $1 a day through ICE’s so-called “voluntary work program.” USCIS wants to abolish most fee waivers except for those listed in the law (VAWA self-petitioners, battered spouses of certain nonimmigrants, U visas, T visas and TPS). Among the fee waivers largely eliminated are those for naturalization, adjustment of status, green card replacement and renewals and employment authorization. Currently, almost 40% of naturalization applicants requested a fee waiver. Transfer of USCIS Filing Fees to ICE Where would the money from these new filing fees go? To reduce large USCIS waiting times? No! Over $200 million per year would be transferred from USCIS to fund ICE enforcement operations. In other words, the government is proposing to charge immigrants following the law and seeking immigration benefits an extra fee so that they can detain and deport other immigrants. USCIS is largely funded by its Immigration Examinations Fee Account, or IEFA. The IEFA is meant to be used for “expenses in providing immigration adjudication and naturalization services.” INA § 286(n). However, USCIS plans to transfer $207.6 million from IEFA to ICE for use in enforcement, despite not only IEFA’s clear purpose, but also the staggering backlog of cases that USCIS has yet to adjudicate. Premium Processing Recently, the USCIS increased the fee for premium processing. Now, it announced that premium processing will slow down from 15 calendar dates to 15 business days effective December 2, 2019. When Will the Fee Increases Become Effective? Since this is a proposed regulation, the agency is required to respond to public comments which are expected to be numerous. It is important that you submit comments to USCIS challenging this proposed rule before December 16, 2019. It is not expected that the regulation will be finalized for several months. Persons eligible for naturalization or other immigration benefits should consider filing their applications as soon as possible before the filing fee increases become effective.

Allen Curtis Ladd | Nov 10, 2019

Permanent Residence Case Denied! What Next?

Permanent Residence Generally There are three avenues to permanent residence, outside of removal/deportation court proceedings: (1) Marriage and close family relationship. (2) Employment-based. (3) Asylum. All three involve a sequence of approvals by one or more US government agencies, including USCIS (US Citizenship and Immigration Services), an agency of the Dept. of Homeland Security (DHS). All three require interviews for final approval. For (1) and (2), the foreign national ("the client") may have to attend the interview at a US consulate or embassy in Mexico or overseas. Eligible individuals will have their interview within the USA at a USCIS office. All asylum cases, item (3) above, have interviews at a USCIS asylum office in the USA. After one year of approved "Asylee" status, the client may then apply for permanent residence. At each step, the particular government agency may raise formal questions, which are sent by mail to the lawyer or client or other interested party, such as a US employer or sponsoring family relative. These requests for action are time-sensitive and must be responded to adequately and timely or the case will be forfeited. At the end of each stage, a decision is made -- either an approval or a denial. If it is a denial, the client and related parties may be able to file an appeal (with exceptions discussed below) to a higher authority, or to request that the agency (such as USCIS) review its decision for error and/or consider new evidence to prove the necessary facts to support approval. These too are bound by strict time limitations, generally 30-33 days. While processing times for USCIS review of applications are available online (see https://egov.uscis.gov/processing-times/), listed by forms number and USCIS geographic service center, it is difficult to determine reliably the length of time for either (a) responses to USCIS challenges or (b) appeals and motions to reopen or reconsider. USCIS Challenges and USCIS Denials USCIS responses come in three forms: (a) Rejection. (b) Request for Evidence (RFE). (c) Notice of Intent to Deny (NOID). The Trump administration has been aggressive on pulling the "reject" lever for cases that do not appear to meet minimal standards. Even properly-completed applications with unnecessary fields left blank will trigger a "reject" .... meaning the entire filing package has been sent back and must be reviewed and amended appropriately. Meanwhile, valuable time is lost. RFE's and NOID's are appropriate where the case meets minimal requirements but the documentary evidence is challenged as inadequate. The notice typically contains "boilerplate" or template language, an excerpt from appropriate law, and one or more paragraphs detailing the USCIS position. Depending on the type of application, USCIS will grant a response period of 33 or 87 days. The attorney and client review the USCIS notice for accuracy -- occasionally the USCIS officer, who is typically time-pressured to review applications, may have overlooked a piece of evidence, or may be applying the law incorrectly -- and draw up a plan to respond. The attorney writes a cover letter explaining the response and includes a listing of the evidence which is being submitted. The response "package" is sent by Priority Mail or FedEx to the USCIS office which is reviewing the application, and the client and lawyer wait for a decision. In some instances, the active review of the case by USCIS comes at the end, at or after an interview at the local USCIS "field office." The parties are given a written request letter and an appropriate time to respond. What if an application is denied by the USCIS service center or USCIS field office? If the client or attorney do not respond within the 30-33 days period, it becomes final. Depending on the stage of the process, and also depending on the nature or type of the application, a denial might mean that the client is at risk of receiving a notice, called a Notice to Appear, to inform him or her that the removal/deportation process has begun against him or her. From that point forward, USCIS no longer has responsibility for the application. Any new application for relief -- permanent residence or asylum -- may only be sent to the Immigration Court, not to USCIS. Q: What are the tools to respond to an adverse decision -- a "denial" -- by USCIS? A: There are three: (i) A motion to reopen, to offer new evidence that will prove the application is approvable. (ii) A motion to reconsider (or "motion for reconsideration"), to request USCIS to review its decision for errors, as pointed out in the lawyer's motion papers. For example: The USCIS decision has overlooked evidence. It is mis-applying the law. It is overlooking a relevant law. It is refusing to use discretion when it is required by the law. (iii) An appeal. Unlike the two motions, which are available to all applications, an appeal is not. For example, you can't appeal a denial of an application for permanent residence (Form I-485) . If the motions or appeal are reviewed and denied, then an appeal may be made to the "AAO" or "BIA." Visa Challenges and Visa Denials The US Dept. of State ("State Department" or "DOS) reviews applications for visas, both for temporary periods ("nonimmigrant visas") and for permanent residence ("immigrant visas"). DOS has "consular offices" for visa processing and interviews at US embassies and consulates in Canada, Mexico, and most other foreign countries. Each type of visa has its own particular requirements. Most nonimmigrant visas are heavily restricted by a law called "section 214(b)" (two-fourteen-bee) that gives DOS the right to refuse a visa unless the visa officer or staff member is convinced that the client has a home, family, or other strong ties which will compel the client to return to after the stay in the USA. The law, section 214(b), actually "stacks the deck" against a client being able to prove this, by creating a legal presumption that the client is really coming to stay indefinitely in the USA. It is a law that is all-too-powerful in the hands of US consular personnel -- and often the review of the visa may not even be made by the consular officer, but by local-office staffers. I call this "front-desking" a visa application. It is not fair, but it's done. In any event, in the course of a visa application, the embassy or consulate may request evidence, before or during the visa interview. This can be a sensible request for a missing or supplemental item. This is what the visa officer's guide requires. Too often in the past several years, however, we have seen, especially in cases involving proof of financial responsibility (the "public charge" question), that the decision has been taken to shortcut the request procedure. Instead an outright visa refusal has been made, without giving the client the opportunity to respond. Q: What is the appeal process, in case of visa refusal? A: It is a fact of life, and law, that clients have drastically fewer rights when they are outside the United States, even in US consulates and embassies. There is no direct "appeal" process. There is no "motion" option. Instead the lawyer will attempt to resolve the issue with the consular officer or superior. Sometimes matters can be reasonably resolved, when what might be a misunderstanding or miscommunication is cleared up. If the matter cannot be solved by a cordial professional exchange, then the lawyer reviews the case to identify any error of law and, if one can be identified, the lawyer requests review and guidance from the State Department. If the State Department agrees, then it sends the consular section a request -- not instructions, but a request -- to review its decision. If the motions or appeal are reviewed and denied, then an appeal may be made to the "AAO" or "BIA." US Dept. of Labor - "PERM" Cases In many employment-based cases, the first step is an employer-driven recruitment process under the direction of the US Dept. of Labor ("Labor Department" or "DOL"). This process is defined by the acronym "PERM." The purpose of the PERM process is to prove that the employer has tried unsuccessfully to identify qualified US workers, to make the case that the job offer to the foreign national client is now appropriate, and a permanent residence case may continue. After the US employer has completed the recruitment process, and documented its compliance with the PERM requirements, it electronically files the appropriate form with DOL On review of the form, DOL may approve the case … or it may request additional proof that the employer has complied with the PERM requirements. This stage is called an "Audit" which is similar to the RFE or NOID with USCIS, above. The employer is given 30 days (not 33 days) to comply. Upon review of the Audit response, DOL may approve or "certify" the process, or it may deny the case. If DOL denies the case, the employer and lawyer will have 30 days to file an appeal to the BALCA (Board of Alien Labor Certification Appeal). Upon review by BALCA, the employer will either be notified of a denial or will be given 30 days for the lawyer to file a memorandum of law in support of the employer's position, that it has met all legal requirements. If BALCA approves the appeal, the employer will move on to the USCIS phase and file an immigrant visa petition (Form I-140). The remaining phase is the client’s application for an immigrant visa, abroad, or if eligible, and application for permanent residence (Form I-485).

Victoria Ledeneva | Nov 9, 2019

EB-1A and EB-2 NIW as Alternatives to EB-5

Extraordinary Ability (EB-1A) category To be eligible for Extraordinary Ability (EB-1A) category, an applicant must demonstrate that 1. he or she has received a major, internationally recognized award; or 2. that the applicant meets 3 of the 10 criteria identified by the USCIS. For example, to meet at least three of the ten criteria, the applicant may provide evidence demonstrating that the applicant is a member of a professional association in the field for which classification is sought which requires outstanding achievement of its members; published materials about the applicant in professional or major trade publications or other major media relating to the applicant’s work in the field for which classification is sought; evidence demonstrating that the applicant has participated in judging the work of others in his or her field or allied field for which classification is sought, either individually or on a panel; evidence of the applicant’s original business-related contributions of major significance to his or her field; evidence of the applicant’s authorship of scholarly articles in the field, published in professional or major trade publications or other major media; evidence of the applicant’s performance in a leading or critical role in organizations or establishments with distinguished reputations; evidence that the applicant received in the past or will receive in the future a high salary or other significantly high remuneration in relation to others in his field. In addition, this category is a great option because it is eligible for Premium Processing meaning that if the applicant pays $1,410 in addition to the regular filing fee ($700), the USCIS will review the EB-1 petition within 15 days from the date of filing. EB-2 National Interest Waiver (NIW) category The EB-2 National Interest Waiver category maybe beneficial to those Entrepreneurs whose endeavor would have a significant economic impact in the United States. To be eligible for EB-2 NIW, an applicant must demonstrate the following: 1. his or her proposed endeavor has both substantial merit and national importance; 2. he or she is well positioned to advance the proposed endeavor; and 3. it would be beneficial to the U.S. to waive the requirement of a job offer and labor market test. National Interest Waivers are usually granted to those who have exceptional ability in their fields of endeavor. To demonstrate exceptional ability, the applicant must meet at least three of the enumerated criteria. For example, the applicant may submit evidence demonstrating that the applicant possesses degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to his or her area of exceptional ability; letters documenting at least 10 years of full-time experience in his or her occupation; a license to practice his or her profession or certification for his or her profession or occupation; evidence that the applicant has commanded a salary or other remuneration for services that demonstrates his or her exceptional ability; membership in a professional association(s); recognition for the applicant’s achievements and significant contributions to his or her industry or field by his or her peers, government entities, professional or business organizations; as well as other comparable evidence.

Ajla Husic | Oct 9, 2019

USCIS Revises Interview Policy for Two Year Green Cards

USCIS Policy USCIS issued a policy memo that went into effect on December 10, 2018, which provides guidance to USCIS officers on waiving the interview requirement for filing I-751 Petitions. Individuals who obtain status through marriage, in certain circumstances, receive a conditional Green Card for two years. The conditions must be removed in order to maintain valid legal status. The I-751 is an application to remove the conditions on a Green Card and if approved the individual would receive a regular 10 year Green Card. The new policy applies to all I-751 petitions received by USCIS on or after December 10, 2018. The policy is more expansive than the previous policy, which required interviews only when there was insufficient evidence of the bona fides of the marriage, and/or in waiver cases, there was inconclusive evidence to establish eligibility for a waiver. Additionally, the prior policy encouraged use of Requests for Evidence (RFE) to obtain additional information in lieu of transferring the petition to the local USCIS office for an in-person interview. What Does This Mean? For those who received their visa at a U.S. consulate overseas or entered the United States as a K visa holder and were never interviewed by USCIS will be required to attend an in-person interview, even if they are able to establish, through initial evidence, that the marriage is bona fide. This applies to individuals who file jointly with their spouse and to those who file individually and need a waiver because of divorce, death of the spouse, or other qualifying reasons. This new guidance suggests that more I-751 petitions will be transferred to local USCIS offices and scheduled for an in-person interview. The processing times for I-751 petitions are already facing substantial processing delays and have increased from an average of 12 months to 18 months. The increase in interviews is likely to cause significant delays in obtaining a final decision on the I-751 petition.