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 starts with filing the I-485, which must be filed while the applicant is inside the United States. An important requirement of the AOS process is that (with a few exceptions) 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:

Biographical documents

  • current and past passports,
  • birth certificate (long form, and with translation if not in English),

Evidence of maintained status

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 permit will come in the form of an Employment Authorization Document (EAD) card, and if you apply for Advance Parole at the same time that card might double as travel authorization or could come in a separate “advance parole document.” 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. Given current border processing policies, use of the advance parole card comes with several potential risks that should be thoroughly discussed with a lawyer before embarking on international travel.

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 Immediate Relatives to U.S. citizens 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.

If your temporary work and travel cards will expire during the wait for Green Card, USCIS allows EAD card holders to start their renewal process six months before their current card expires. Start the process early, because for some applicants the EAD card is a necessary aspect of life while awaiting the Green Card. It can help you get a drivers license, to show work authorization to your job, and to show lawful presence to ICE officers (should you encounter them).

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.

Medical Examinations

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 asealed envelope, which you should not unseal.

If the doctor’s I-693 exam was completed and signed on or after November 1, 2023 there is no expiration date–the sealed exam is indefinitely valid. Otherwise, the validity period of the I-693 is two-years. This examination must be submitted concurrently with the I-485 or USCIS might reject the entire package.

In-Person Interviews

Most Adjustment of Status applications will require an in-person interview at your local USCIS field office before approval. At the interview, a government 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, potential fraud indicators, your maintenance of status, etc. 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 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 for cases with any legal complications. Having a well-prepared attorney present can help keep the case from derailing at the interview stage.

Conditional Residence

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 the government can terminate your Green Card status, which will result in removal proceedings and a Notice to Appear in immigration court. If you file the I-751 late, you must prove you had a good reason to miss your filing deadline. 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/prolonged 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.

Conclusion

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 should draft and fill all required documents and forms for you, including a G-28 Notice of Entry of Appearance as Attorney on your case. This means that the USCIS will send all correspondence in two copies: one to your address and the other to the lawyer’s office. This ensures that you won’t miss any important notices. Contact Taymoor Pilehvar today to schedule your free consultation.
(786) 490-6649

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