FAQS: Employment-Based (EB) – Adjustment of Status (AOS) – October Visa Bulletin 2020
On Thursday September 24th, the October Visa Bulletin was published by USCIS, advancing most EB categories forward across all nationalities. Please see the Dates for Filing table from the Visa Bulletin below:
This rapid movement in the priority dates (PD) have raised several questions. We address some of those below:
General Questions:
- Have the priority dates for EB-1, EB-2 and EB-3 have progressed in the “Filing Dates” chart. If so, does this mean I can file my I-485 (green card) application?
Yes, the priority date for the first three Employment Based categories (EB-1, EB-2 & EB-3) have progressed for the month of October from September 2020. In October the filing dates for EB-1, EB-2 and EB-3 categories have progressed, specifically for China and India.
For India:
EB-1 preference category: From July 1, 2018 to September 1, 2020
EB-2 preference category: From Aug 15, 2009 to May 15, 2011
EB-3 preference category: From February 1, 2010 to January 1, 2015
For China:
EB-1 preference category: From July 1, 2018 to September 1, 2020
EB-2 preference category: From Aug 1, 2016 to Oct 1, 2016
EB-3 preference category: From May 1, 2017 to June 1, 2018
If your priority date is current, then depending on the category (EB-1, EB-2 or EB-3) you are eligible under, you can file your I-485 application.
For example: If your country of chargeability is India and your PD is May 15, 2011 or earlier (under EB-2) or is January 1, 2015 or earlier (under EB-3), then you can file your I-485 application.
- What are Final Action Dates and Filing Dates?
Every month, USCIS publishes a visa bulletin. If USCIS determines there are more immigrant visas available for a fiscal year than there are known applicants for such visas, USCIS will state on its website that an applicant may use the Dates for Filing chart. Otherwise, USCIS will indicate on its website that an applicant must use the Final Action Dates chart to determine when one may file their adjustment of status application.
If your priority date is current with the Final Action Dates in the September Visa Bulletin, then it means visa numbers with your priority date or earlier have become available for the preference category and that USCIS is ready to adjudicate your green card application.
If your priority date is current with the Filing Dates in the October Visa Bulletin, then it means that USCIS is ready to accept your I-485 application even though visa numbers are not yet available.
NOTE: Even though the Filing Dates are current for your case and you are able to file your I-485 application, since the Final Action Dates may still not be current, it could take a few years before you can actually receive your permanent resident status. Your priority date must be current with the Final Action Dates in order for USCIS to grant permanent residence (i.e. the Green Card).
- How soon should I file my I-485 application?
The Visa Bulletin is issued on a monthly basis and sets forth the availability for an immigrant visa per country for the entire month. Therefore, if your priority date for filing became current in October, you can file during the entire month of October. It does not matter whether you file on October 1st or the last day of October. Since October 31st lands on a Saturday, we recommend that you file so that your case reaches USCIS anytime between October 1 through October 30th.
- What are the benefits of filing an I-485 application?
The I-485 application allows for applicants to apply for employment authorization and permission to travel as interim benefits while the application is pending. It also allows principal applicants to change employers pursuant to INA Sec. 204(j) after the I-485 application has been pending for 180 days. Please note that new positions must be in a same or similar occupation with an employer for the I-485 application to continue to be valid.
- I am outside the US now; can I file my I-485?
Unfortunately, you will not be able to file your I-485, if you are outside the US at the time of filing. You must be in the US to adjust status to permanent resident. That includes eligible family members as well.
- Can I travel after I file my I-485?
Yes, BUT you must either have Advance Parole (discussed in the next FAQ section) or be maintaining your H or L status and have a valid visa. If you are not on an H or L, and do not have advance parole, and you still travel internationally, that travel will be deemed an abandonment of your adjustment of status application. This equally applies to derivative family members (spouse, children).
- Can I change employers after I file my I-485 application?
If you have submitted an application for adjustment of status based upon an approved I-140 visa petition approved under one of the Employment-Based preference categories, you may change employers pursuant to INA Section 204(j) if the following conditions are met:
- Your adjustment of status application has been pending for at least 180 days; and
- The new position is in the same or similar occupation as the job offer listed in the approved I-140 petition.
Your new employer will need to confirm that a bonafide job offer exists using Form I-485, Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j).
- Must I be in valid status when I file my I-485 application?
You must be in a valid non-immigrant status in the U.S. to file the I-485 application.
Please note that INA Sec. 245(k) does provide an exception for persons who are out of status if they have not accrued 180 days or more of unlawful presence. Please consult with an attorney for more details on this analysis.
- Must I maintain my non-immigrant status while my I-485 application is pending?
Once your I-485 application is confirmed as received and receipted, you are no longer required to maintain an underlying status. This is because the timely filing of an adjustment of status application allows for you to remain in the U.S. while the application is pending without accruing unlawful presence. In addition, the concurrent filing of employment authorization and advance parole applications will allow you to work and travel. Please note that these interim benefits can take time to be issued, which can result in breaks in employment authorization due to uncertain processing times.
ImmiCore Law advises that you maintain an underlying status until the green card is issued wherever possible. if for any reason your I-485 application is denied, you will have a status to fall back on.
Family Members and Child Status Protection Act (CSPA)
- Can any of my family members apply for their I-485 application with me?
Yes, your immediate family members – spouse and unmarried children under 21 – are eligible to file the I-485 application as derivative applicants. They are required to submit their own separate applications and filing fees, though you can mail them together to USCIS. Children who are older than 21 years old may still qualify under the Child Status Protection Act (CSPA). See FAQs under CSPA.
Parents, siblings, and other family members do not qualify as derivatives eligible to apply for the Green Card.
- What happens to my child if they are close to aging out (i.e. 21 years old), or will age out prior to the Final Action Date becoming current for my priority date?
The Child Status Protection Act (CSPA) is intended to provide some relief for children to prevent them from “aging out”. The CSPA allows the child to subtract the number of days that the I-140 was pending from the child’s biological age, at the time that the Immigrant Visa became available, in order to provide them with a new “immigration age”.
Further, if the child is under 21 using the adjusted CSPA on the date the visa becomes available, s/he will have 1 year to “seek to acquire” LPR status. If they satisfy that requirement, they will preserve their derivative status until they immigrate or adjust status, provided they remain unmarried. This age is frozen, even if the priority date later retrogresses.
For example, if the I-140 was pending for 15 days, then 15 days would be subtracted from the child’s age when the priority date for final action became current, and the child has 1 year from that date to file for their Green Card either through Adjustment of Status or through consular processing of an Immigrant Visa.
Below is the formula for determining eligibility:
“CSPA age is calculated by subtracting the number of days your petition was pending (pending time) from your age on the date an immigrant visa becomes available to you (age at time of visa availability).”
- The formula for calculating CSPA age is as follows:
Age at Time of Visa Availability – Pending Time = CSPA Age
The length of time a petition was pending (pending time) is the number of days between the date that it is properly filed (filing date) and the approval date. The formula determining the length of time the petition was pending is as follows:
Approval Date – Filing Date = Pending Time
- The date the visa is considered available is the later of these two dates:
- The date the petition was approved; or
- The first day of the month of the Department of State Visa Bulletinthat indicates that a visa is available for you in the Final Action Dates chart.
Even if your priority date is current under the Filing Dates, unless your priority date is current under the Final Action Dates, before your child ages out, s/he may not be able to benefit from the AOS application.
Therefore, you should make arrangements to change your child who will age out to a different non-immigrant category to ensure s/he does not fall out of status. This change of status to nonimmigrant status will become even more important should you not continue to maintain your nonimmigrant status (H1B/L-1).
However, if in the month of October, your child has now not aged out yet, it may be prudent to file your child’s AOS application as well and seek the interim benefits of EAD and AP until they age out.
Employment Authorization (EAD) and Advance Parole
- Can I file applications for Employment Authorization Document (EAD) and Advance Parole (AP)?
Yes, you can. The Employment Authorization Document (EAD, Form I-765) and Advance Parole (AP, Form I-131) are “interim benefits” that you can apply for while your Adjustment of Status (I-485) case is pending.
We typically recommend that you maintain your underlying non-immigrant status rather than using the EAD / AP; but we also recommend filing for the EAD and AP as a back-up option in the event you are unable to maintain your non-immigrant status.
- Are there additional fees for the Employment Authorization Document (EAD) and Advance Parole (AP)?
Currently, there are no additional filing fees to apply for these benefits. However, USCIS has issued a proposed rule to charge filing fees for these applications, but that rule is currently enjoined by a federal court. So, for now, there are no additional fees.
- How long is the EAD/AP card valid?
The EAD is valid for either 1 or 2 years. Typically, it is valid for 2 years if the priority date is not current. You can keep extending the EAD card as long as your I-485 (GC) is pending decision with the USCIS.
The AP and EAD are issued as combination card and so the validity on the EAD is typically the validity on the AP as well.
H-4 Applicants
- I am in H-4 status and have an EAD with my employer. Should I convert to H-1B to show maintenance of status?
If you are maintaining your H-4 status, there is no requirement to convert to H-1B to show maintenance of status.
- I am in H-4 status and working with my H-4 EAD. My I-140 was filed by my employer and my priority date is current. Can I file my I-485 using the I-140 approval?
Yes, you can, as long as your employer can verify that a bona fide job offer (on the I-140) is still available by filing the I-485 supplement J.
Retrogression
- What is retrogression? Can the Filing Dates Retrogress?
Retrogression is when a priority date that is current in a month may not be current in the subsequent month or it may even move backwards to an earlier date. This occurs when more people apply for a visa in a particular category than there are visas available for that month. Retrogression happens when the annual limit for the category or country has been exhausted or is expected to run out soon.
Yes, filing dates can retrogress too.
- Will the priority dates for the EB categories retrogress in November?
At this time, we cannot speculate about the progression of the priority dates in November, the Department of State has published that there will be “rapid movement” for EB-1,2 &3 categories for China and India in the next three months. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-october-2020.html
Application and Supporting Documents:
- What application forms am I required to file?
Your adjustment of status (AOS) application should be filed with the following forms:
| Form I-485 |
Application To Register Permanent Residence or Adjust Status |
| Form I-485 Supplement J |
Confirmation of Bona Fide Job Offer |
| Form I-765 |
Employment Authorization Document (EAD) |
| Form I-131 |
Advance Parole |
| Form I-944 |
Declaration of Self Sufficiency |
| Form I-693 (can be submitted later) |
Sealed Medical Examination of Aliens Seeking Adjustment of Status by Civil Surgeon (can be submitted at a later time) |
| Form G-28 |
Notice of Appearance for the attorney or representative |
- Do I have to file Form I-765 (EAD) and I-131 (Advance Parole)?
The I-765 and I-131 are not required, but since they are interim benefits that will give you the eligibility to be employed and travel respectively while your I-485 is pending, you should apply for those benefits. Furthermore, USCIS is currently processing them as a courtesy without any additional fee. Hence it will be prudent to apply for those benefits as well.
- What is the I-485 Supplement J and do I need to submit it?
The I-485 Supplement J confirms that you have a bona fide job offer. Both you and your employer have to fill out this form. The employer can be represented by different legal counsel than you.
If you are not concurrently filing an I-140, then you must file the Form I-485 Supplement J, Confirmation of Bona Fide Job Offer.
This form is not required, if you are filing a downgrade from EB-2 to EB-3 since your employer will be filing the I-140 petition.
- Do I have to submit my Sealed Medical Examination (I-693) when I file?
You are NOT required to submit Form I-693 at the time you file your adjustment application, but may do so if you wish. Because of the time-limited validity of Form I-693, you may choose to submit your Form I-693 in response to a Request For Evidence (RFE) after you file your Form I-485. You may also submit Form I-693 in person at an interview in a USCIS field office, if an interview is required. By waiting to submit Form I-693, you may avoid having to repeat the immigration medical examination.
Medical Examinations are considered valid for up to two years and are only valid for submission within 60 days of completion.
Only a civil surgeon can do the Medical Examination and it must be sealed for submission. You can locate a civil surgeon using the USCIS locator tool. You should bring your vaccination record if available. If you do not have one, the civil surgeon will recommend the course of action to take.
- What are the required documents for filing the I-485?
Our checklist containing the required documents can be viewed here.
- Is there any specific guidance relating to the civil documents that need to be submitted?
Yes, depending on your country of chargeability, specific guidelines apply. You can review the document requirements based on your country of chargeability in the Department of State’s website here.
Public Charge
- What is the Public Charge Questionnaire? Why should I file it?
The Public Charge questionnaire is the Form I-944, Declaration of Self Sufficiency. You are required to submit this form with supporting evidence to show that you will not become a public charge (financial burden) to the US government. The Public Charge Rule went into effect on Feb 24, 2020 and was subsequently challenged in the courts. On September 11, 2020, the Federal Court confirmed that the Public Charge Rule applies thereby mandating submission of I-944 and supporting documents. See USCIS publication here.
You can see our checklist for the I-944 supporting documents here.
- What are the required documents for the Public Charge Questionnaire, Form I-944?
Our checklist for I-944 supporting documents can be viewed here.
Civil Documents for India
Below are some questions that specifically apply to India:
- I was born in India and my birth certificate does not list my name on it, what can I do?
If your name is unavailable on your Birth certificate, you can provide secondary evidence – high school records and affidavits from parents or individuals with personal knowledge of birth can be submitted. See guidance here. If you have an Aadhar card, PAN card, or any other document (preferably contemporaneous with the birth) which has information about the birth and parentage on it, it can be submitted as secondary evidence.
- I was born in India prior to April 1, 1970, and do not have a birth certificate, what can I do?
If your date of birth is before April 1, 1970, it is presumed that you do not have a birth certificate. Therefore, we can submit any secondary evidence (high school records, affidavits, Aadhar card, PAN card) verifying your date & place of birth and your parentage (preferably contemporaneous with your birth). Note that, despite the Department of State’s guidance, the USCIS sometimes issues RFEs requesting NABC even for births prior to 1970.
- I was born in India prior to April 1, 1970, and do not have a birth certificate, what can I do?
If your date of birth is after April 1, 1970, you have to submit a non-availability of birth certificate (NABC). Additionally, as secondary evidence, high school records and affidavits from parents or individuals with personal knowledge of your birth can be submitted. See guidance here. Other documents that are typically submitted by Indian born nationals include an Aadhar card, PAN card or any other document (contemporaneous with your birth) that verify your birth and your parentage.
It is also recommended that you re-register your birth with the government body of your birthplace to obtain a new birth certificate. While it is not required you obtain this document prior to filing the AOS application, it will be helpful should a Request for Evidence (RFE) be issued.
