Phase Three – Adjustment of Status or Consular Processing
Once the I-485 Application to Adjust Status to Permanent Residency is filed with the USCIS, a foreign national immigrating pursuant to an approved PERM application is considered to be in legal status as an "applicant to adjust status." This is also known as the foreign national being “in adjustment.” The application consists of filing some additional forms and documents with the USCIS, including passport photos of the foreign national and the sealed results of a medical examination. A separate I-485 Application to Adjust Status must be filed for each eligible immediate family member (spouse and children under the age of twenty-one).
Once the application has been filed with the USCIS, it can take a year or longer, depending on USCIS backlogs, for the application to be approved and for the foreign national to become a U.S. Permanent Resident. In some cases, before approving the I-485 Application, the USCIS may decide to schedule an interview for the foreign national at the local office of the USCIS serving the location where the foreign national resides.
In the meantime, while waiting for the I-485 Application to be processed, if the foreign national does not already have employment authorization in the United States, through a non-immigrant visa or some other means, he or she may simultaneously apply for and receive an Employment Authorization Document card (commonly known as an EAD card) well before actually receiving permanent residency, by filing a Form I-765 Application for Employment Authorization together with the I-485 Application. Under federal regulations, the USCIS is required to process I-765 Applications within 90 days of receiving them.
Furthermore, if the USCIS has already approved the I-140 Immigrant Petition, but has not yet completed its processing of the I-485 Application for Adjustment of Status within 180 days of receiving it, then the foreign national with an EAD card may change employers and still remain eligible for U.S. Permanent Residency, if the new job is in the same occupational classification as the one for which the original employer filed the PERM application.
The general rule is that, during the time that the I-485 Application to Adjust Status is pending, the foreign national may not leave the United States without first applying to the USCIS for permission to do so. The document permitting the foreign national who is in adjustment to re-enter the United States after foreign travel is known as an "Advance Parole" document. It is applied for using USCIS Form I-131, which can be filed with the USCIS at the same time as the I-485 Application and I-765 Application.
However, in some cases a foreign national who has filed an I-485 Application with the USCIS will not need an Advance Parole document. If the foreign national has a valid un-expired H-1B, L-1B, or L-1A visa in his or her passport and continues to be employed by the company that sponsored him or her for the H-1B, L-1B, or L-1A visa, then the foreign national can re-enter the United States using that classification of visa, without needing to use an Advance Parole document. This exception to the requirement of having an Advance Parole document to re-enter the United States after foreign travel also applies to spouses and children under 21 of H-1B, L-1B, and L-1A visa holders who have unexpired H-4 or L-2 visas in their passports.
Upon final approval by the USCIS of the I-485 Application for Adjustment of Status, the USCIS will issue an Approval Notice, also known as a Welcome Notice, to the foreign national. Either at the same time, or shortly afterwards, the foreign national should receive a Permanent Resident Card, popularly known as a “Green Card,” in the mail.
In some cases, it may be necessary or desirable to use an alternative method of finalizing the process of obtaining permanent residency, once the USCIS Form I-140 Immigrant Petition has been approved. In these cases, the I-140 petition will have been filed alone, without the accompanying I-485 Application. This alternative method is known as "Consular Processing" and involves completing the process of obtaining U.S. Permanent Residency through the U.S. Department of State. In consular processing, the interview for an immigrant visa takes place at a U.S. embassy or consulate located (with some exceptions) in the foreign national’s country of citizenship.
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