Becoming a Permanent Resident is a Two-Step Process
The Green Card process has two stages. First, a person has to be approved for whatever eligibility basis they seek. This is typically done through a U.S. petitioner (employer) and can include employment-based options via the I-140 or family-based options via the I-130. After approved as eligible for a Green Card status, the person begins the second stage, which can vary depending on where the applicant is at time of filing, travel plans, schedule, budget, etc. Your attorney will help you with the timing strategy for your particular situation.
The second stage of getting a Green Card has two alternate options that are essentially contingent on where you would like to wait while the application processes:
- If you are inside the United States you can adjust your status into Permanent Resident. This option requires you to remain within the U.S. for 3-5 months at the minimum before you can expect a temporary Work and Travel Card;
- If you are outside the United States, you can consular process through the National Visa Center and a foreign consulate. This process also applies if you cannot remain in the U.S. long enough to adjust status.
Adjustment of Status (AOS)
The Adjustment of Status (AOS) Process is performed by filing the I-485, and must be filed while the applicant is inside the United States. An important requirement of the AOS process is that you must have entered the United States with inspection, aka legally. If you are an Immediate Relative of a U.S. citizen you can still adjust status if you entered legally then overstayed. Otherwise, you must have maintained a legal status in order to qualify for Adjustment of Status. Your attorney can advise you on a strategy to maintain an underlying nonimmigrant status that will act as a safety net while your AOS application is pending.
The I-485 should be filed with evidence that the applicant qualifies for Permanent Residency. If your Green Card eligibility is based on employment this will include the I-140 approval notice, and if family-based it should include your I-130 approval notice. These documents show that the USCIS has already reviewed and approved your eligibility for a specific Green Card category.
Additionally, your I-485 needs to include filing fees as well as copies of documents necessary for the adjustment permanent residence. Save the originals for your in-person interview (see below). AOS evidence should include documents such as the following, as they apply to your case:
- current and past passports,
- birth certificate (long form, and with translation if not in English),
Evidence of maintained status
- current and past U.S. visas,
- I-94 and travel history,
- Pay stubs and IRS 1040 tax returns (have attorney review),
If you have Dependents
- Marriage certificate for spouse (with translation if not in English),
- Birth certificates for children (long form, and with translation if not in English),
- AOS form I-485 for each dependent, with $1225 filing fee for each,
Support Forms and Documents
- Work and Travel card applications (see below),
- Evidence of sponsor’s ability to undertake Affidavit of Support (I-864),
- 2 passport sized photos (2” x 2” or 51mm x 51mm) for each application, for each person
- I-693 Medical Evaluation (see below)
Temporary Work and Travel Card for AOS Applicants
Those who apply for Adjustment of Status with the I-485 qualify for work authorization and travel authorization for the period during which their AOS is pending. The work authorization will come on an Employment Authorization Document (EAD) card, and if you apply for Advance Parole at the same time that card will double as travel authorization. To tell the difference, an EAD card for work only will read “NOT VALID FOR REENTRY TO U.S.” at the bottom, where as a dual purpose card will read “SERVES AS I-512 ADVANCE PAROLE” at the bottom.
The advance parole is an important benefit for the AOS process. Departure from the U.S. would typically be considered an abandonment of your pending I-485, but the I-512 advance parole will allow AOS applicants to depart and reenter the U.S. without stopping the AOS process. If one were to travel without advance parole authorization, their I-485 would be abandoned and the person would have to start that process over again, including the filing fees. Even if you have another valid visa that allows you to reenter, that departure could be considered an AOS abandonment. As such, you should only travel on advance parole while your I-485 is pending, and plan travel accordingly with your attorney’s assistance.
The temporary EAD card will not cost any extra filing fees if the forms are submitted at the same time as the I-485. Some applicants can even submit their I-485 at the same time as their I-140 or I-130 if their desired Green Card category has an available visa number. Those that can file all their forms together are EB-1, Immediate Relatives to U.S. citizen, and any other category that is “current” on the visa bulletin. If you are not one of those, then you will have to file your I-140 or I-130 first, and then file your I-485 package according to your priority date and the visa bulletin.
The temporary EAD card is only good for one year at a time, and the Adjustment of Status process is frequently taking more than a year at current rates. This results in AOS applicants whose temporary work and travel cards expire during the wait for Green Card. The USCIS has offered an earlier renewal window, allowing EAD card holders to start their renewal process six months before their current card expires. I highly recommend starting the process early, because for some applicants the EAD card is a necessary aspect of life while awaiting the Green Card. The EAD card will be used to get a driver license, to show work authorization to your job, and to maintain the ability to travel internationally without abandoning your AOS application.
If you do wait too long to renew your EAD card there is a 180-day automatic extension of your work authorization as long as you timely file the renewal while your current EAD card is still valid, but this does not apply to travel authorization. If you do file it right before your current card is expired, you can expect some inconveniences, such as having to explain complicated I-9 procedures to your employer, not being issued a driver’s license until the new EAD is approved, and not being able to make an international trip because of a pending renewal.
Green Card applicants must demonstrate the absence of any health-related inadmissibility. Things that can make you inadmissible include:
- lack of required vaccinations,
- communicable diseases,
- mental disorders, and/or
- a history of drug addiction.
The medical evaluation process will differ depending on whether you consular process or adjust status. Adjustment of Status applicants must visit a designated Civil Surgeon from the USCIS Find-A-Doctor list. That doctor will check vaccination records and perform other evaluations as needed to complete an I-693 Report of Medical Examination and Vaccination Record. The doctor will give you the report in a sealed envelope, which you should not unseal.
The USCIS Policy Manual was revised on October 16, 2018 to extend the validity period of the I-693 to two-years, and require the exam to be performed no more than 60 days before filing for adjustment of status. This examination can be submitted concurrently with the I-485 or later in the process upon USCIS request. Current adjudication timelines are between 1 and 2 years, so best practice is to submit concurrently.
In-Person Interviews for Marriage and Employment Based Applicants
Certain Adjustment of Status applications require an in-person interview at your local USCIS field office before approval. Before, only immediate relative marriage-based petitions required an interview because of the immense benefits that come with marriage to a U.S. citizen. However, I-485s based on employment and refugee/asylum status and filed on or after October 1, 2017 must now also attend an in-person interview. This expansion of the in-person interview requirement is due to a policy change that occurred on released on A
At the interview, a USCIS officer will go through the I-485 application with you and ensure everything is approvable. They will ask questions about your work history, your residence history, any criminal record, and your maintenance of status. They will ask several variations of whether or not you’ve been a terrorist, a communist, a rapist, murderer, pimp, prostitute, etc. Further, they will review your medical examination and ensure no health concerns will prevent your Adjustment of Status. If all goes well expect an approval notice 2-5 weeks later in the mail and a Green Card soon after. If fraud is suspected, they will continue their investigation with phone calls, work visits, house visits, requests for evidence, etc.
The USCIS allows applicants to bring attorneys to this interview, which is highly recommended especially for any cases with complications. Having your well-prepared attorney present can help keep the case on track if there are documents that the government cannot find in their system, and the attorney will be on hand if any of the USCIS questions require legal explanation.
If your marriage was less than two years old on the day you became a Permanent Resident through your spouse then you will be issued a two-year Green Card and you will become a “conditional” Permanent Resident. If this is the case, you will have to petition to remove those conditions during the 90 days before your conditional Green Card expires using the Form I-751 Petition to Remove Conditions of Residence. If you fail to do this in a timely manner you will risk your Green Card status, which will automatically terminate and result in removal proceedings and a Notice to Appear. If late, you must prove you had good cause to miss your filing deadline and the USCIS can give you discretionary lenience. If any of these issues affect your case be sure to contact your immigration attorney for the best chance at reestablishing your permanent residence.
The two-year conditional period is intended to show that your new marriage was legitimate and bona fide, and not fraudulent or intended to circumvent immigration laws or solely to acquire immigration benefits. In order for the removal of your conditions to be approved, you must generally demonstrate that you are still married to the same person after 2 years. You may also include your children in your application if they received their conditional-resident status either at the same time or within 90 days as you did.
If the marriage did not last for two years, you can still have your conditions removed with a showing that the marriage was in fact legitimate, including the following scenarios:
- You are a widow or widower who entered into your marriage in good faith;
- You entered into a marriage in good faith, but the marriage ended through divorce or annulment; or
- You entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship by your U.S.-citizen or permanent-resident spouse.
The alternative avenues of removing conditions from your Green Card all have a higher burden of evidence than if both spouses remain married for two years, but if you find yourself in any of those scenarios be sure to contact your immigration attorney about how to submit your I-751 and supporting documents.
Carrying the Green Card on your Person
Once you have your Green Card (whether conditional or permanent) there are certain guidelines for you to follow in order to remain compliant with your new status. First, every Permanent Resident above 18 years old must carry their Green Card at all times according to section 264(e) of the Immigration and Nationality Act. Each failure to do so could result in a misdemeanor with a fine (up to $100), jail time (up to thirty days), or both.
Traveling on the Green Card without Abandoning Status
You can travel internationally and reenter the U.S. with just your Green Card and your valid foreign passport. However, every Green Card holder needs to be aware that excessive international travel can result in the loss of your Permanent Resident status. If the government thinks you aren’t living permanently in the United States, they can consider your Green Card abandoned.
The safest strategy possible is to keep all international travel under six months per year, and spend six months or more per year in the United States. Further, pay your U.S. income taxes to the IRS no matter where you are during tax season, and DO NOT mark yourself as a “nonimmigrant” on your tax documents as you are now considered an “immigrant.” You can also bring proof of your U.S. place of dwelling with you during international travel as an extra safeguard to demonstrate your continued residence in the U.S.
If for some reason you have to stay outside of the United States for over six months you should contact your immigration attorney to discuss and file for a reentry permit. This application must be filed while you are in the U.S. but you can travel internationally once you’ve had your biometrics and fingerprinting appointment. In such a case, the applicant can request that the approved reentry permit be sent to a consulate near your destination so that you can pick it up before returning to the United States. If the reentry permit is denied while the applicant is abroad, then call your immigration attorney for the next steps and prepare to modify your trip accordingly.
The Green Card process has numerous stages and can be a complex process. When planning your Green Card strategy, have an attorney on hand to coordinate the timing for your travel and the filing of the documents. Further, an attorney can draft and fill all required documents and forms for you, including a G-28 Notice of Entry of Appearance as Attorney on your case. Contact Taymoor Pilehvar today to schedule your free consultation.