Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

11 Broadway, Suite 615
New York, NY 10004

(212) 430-6582 phone
(212) 430-6583 facsimile

The I-485 Application to Adjust Status in the US

Q: What is the purpose of the I-485 Application to Adjust Status to Permanent Residence?

A: The I-485 Application to Adjust Status to Permanent Residence is a way to process the final stage of the permanent residence process for a foreign national who is already present in the U.S. and wishes to change (or "adjust") from his or her current immigration status to that of U.S. permanent resident.

In almost all cases, the foreign national must have been maintaining valid immigration status to be eligible; there are some exceptions to this.

Q: When is the I-485 Application to Adjust Status to Permanent Residence filed?

A: If at all possible and advisable, the application will be filed simultaneously with the I-140 (for employment) or I-130 (for sponsorship by a family member). Up until a relatively short time ago, this wasn't allowed - the I-485 could not be filed until the immigrant petition had been approved. Even now, however, there are many times when the I-485 cannot be filed along with the I-130 or I-140 - often an immigrant visa is not yet available. See our explanation of priority dates and preference classes for further explanation.

Q: What about my family's applications?

A: This is the stage where immediate family members of the principal applicant are formally a part of the process, in that separate I-485 Applications to Adjust Status to Permanent Resident are filed for each family member. The same forms and documents filed for the main applicant are also filed for these family members (except, of course, employment authorization applications for young children).

A note on children over the age of 21: We cannot obtain permanent residence for children over the age of 21 based upon the principal applicant's case, except in certain specific circumstances. There is a complex analysis involved here, and it makes sense to examine the issue with an immigration lawyer as early in the process as possible.

Q: What personal documents will my family and I need to have for the residence application?

A: You and family members must have birth certificates (each birth certificate must indicate full name, the full names of each parent, date of birth, and place of birth), marriage certificates and other relevant documents (any marriage certificates and divorce decrees for previous marriages, etc.) before the I-485 Application to Adjust Status to Permanent Residence can be filed.

You may also wish to obtain records of all vaccinations received to provide to a USCIS-approved physician when the required medical exam is performed.

Q: How long does it take to prepare the application for filing with the US Citizenship and Immigration Services?

A: Assuming you have already provided all of the needed information on the questionnaires we supplied, it normally takes two days to a week to prepare the necessary materials and send them to you for signature (often depending upon family size).

Following receipt of all signed forms and supporting documents back from you, we carefully review all documents and may contact you to request clarification or additional information. If we need nothing further, it normally takes two to four days from the time we receive the documents back until the application is ready to be filed.

Q: How long is the processing time at U.S. Citizenship and Immigration Services?

A: Currently, application processing time at USCIS can be as much as eight to twelve months, and sometimes longer, but you should know that these processing times fluctuate. Also, situations such as unusually large volumes of applications may occur which delay government processing times.

Q: What is my status once an I-485 Application for Adjustment of Status is filed? Can I stay on in the US even after my nonimmigrant visa expires?

A: Filing of an I-485 Application to Adjust Status does offer some protection for remaining in the US independent of a nonimmigrant visa, and if filed in good faith (where there is good reason to believe that the case is approvable), an individual can remain in the US while the I-485 Application to Adjust Status remains pending.

A denial, however, would immediately revoke the ability to remain in the US absent an underlying nonimmigrant visa which remains valid past the date of denial of the I-485.

Q: Does the I-485 Application to Adjust of Status case give me the right to work in the US independently of a separate work visa? Do I need to wait until it’s approved to have that right?

A: The answer is typically in between these extremes.

Simple filing of the Adjustment of Status case doesn’t grant an ability to work – only an ability to physically remain in the US while the case is ongoing.

But, it does allow you to apply for an interim Employment Authorization Document (EAD) – the intent is to provide the ability to work while the I-485 case is ongoing. Approval of this isn’t immediate, however, it often takes two to four months to come through. During that initial period, an individual with an I-485 Application to Adjust of Status would only be eligible to work if they had an underlying unexpired nonimmigrant visa which permitted employment.

The EAD, which may be continually renewed until an Adjustment of Status-based permanent residence case is completed, serves to keep you in lawful status in the U.S. (you don’t violate status when you work using this card), and is valid for employment authorization until it expires or until approval of permanent residence, whichever comes first.

Therefore, with an EAD card, there is no absolute need to be concerned about the expiration date of maximum stay in H or L status (subject to the travel issue discussed immediately below). Your dependents who wish to seek employment are entitled to the same type of EAD document.

Q: Can I Travel during the Adjustment of Status process?

A: It depends upon your current nonimmigrant visa status - and on whether you have valid status.

If you have a H or L visa in your passport (for example: H-1B, H-4, L-1A, L-1B, L-2) valid past the expected date of return, you are free to travel at any time during the permanent residence process using that visa with one exception: you need to be physically present in the US at the time the I-485 Application to Adjust Status to Permanent Residence is filed.

However, if you are on some other type of visa, there are often restrictions on travel. If you are on a nonimmigrant visa other than H or L visas, you need a special document (i.e. an Advance Parole document) in order to travel once the I-485 Application to Adjust Status has been filed. An application for an Advance Parole is normally filed along with the I-485, but will often take from two to three months for approval. During this two-three month wait, you would not be able to travel. Note however, that after return to the U.S. using the Advance Parole document, you would need an Employment Authorization Document (EAD) in order to work upon your return.

Typically, both an application for an EAD and Advance Parole are filed together at the same time as the Adjustment of Status application. The Parole document in such cases isn’t a separate paper or card, but rather a notation at the bottom of the EAD that

Likewise, family members with valid H or L visas or with approved Advance Parole documents need not experience a travel-restricted period. However, if family members are applying for EAD in order to seek employment, they must also obtain an Advance Parole to facilitate travel abroad and U.S. re-entry - even if they have a valid H or L derivative visa (H-4 or L-2). In this scenario, travel abroad and re-entry into the United States without an Advance Parole document - even with a valid visa- will generally result in having to re-file the Application to Adjust Status.

Again, please note that the Advance Parole document as well as the Employment Authorization Document are granted for no longer than one year at a time, but may be renewed for additional up-to-one-year periods or as long as the I-485 Application to Adjust Status to Permanent Residence remains pending.

Of course, for those who have not maintained valid visa status in the U.S. and can still file an Adjustment of Status under one of the exceptions to the general rule that maintenance of valid immigration status is required (such as marriage to a U.S. citizen after entry with inspection or 245(i) eligibility), travel can be extremely problematic and should be discussed with an immigration lawyer.

We went through a period when travel for a person who had not maintained status even with a valid parole would have subjected the person to the three and ten year bars upon their return. They would have been permitted reentry, but ultimately denied permanent residence because the departure from the US – even with Parole – would have triggered the three or ten year bar.

Then in 2013, a judicial decision changed this – a parolee could travel without triggering these bars.

However, in January of 2017, a new president released an executive order which impacted the use of parole – but was far from clear as to exactly how this was to be impllemented. We currently advise clients who have not maintained unbroken status not to use parole for travel but rather to wait for permanent residence approval.

Q: What happens when the I-485 is approved?

A: Normally, the Approval Notice/Welcome Notice will come to our office with a copy to the foreign national applicant. In some instances, it is possible to take this to a local USCIS District Office and get a Permanent Residence stamp in the foreign national's passport, which can be used to prove eligibility for all benefits to which US permanent residence entitles you (such as unrestricted employment or travel).

However, this is unusual in modern times - local offices are less willing to provide a stamp - since the actual card often arrives much sooner than it used to…within a month in many cases.

When such a stamp is provided, it’s temporary (normally one year in duration), but the status does not expire even if the stamp does. The foreign national will receive the actual permanent residence card in the mail, normally in one to two months at most from the date of the approval.


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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.