A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, December 23, 2011

Important issues about the filing of I-485 adjustment application

The cutoff dates for employment based 2nd preference immigrant visa for China and India have advanced significantly for the past three months.  Since November 2011, the cutoff dates have leaped forwarded by more than 17 months to January 1, 2009.  The rapid advancement means that many EB-2 professionals and advance degree holders are able to submit their I-485 application to adjust status to that of legal resident of the United States.  Simultaneously the applicant may also apply for a general employment authorization document (EAD) and a travel document.   Upon approval of the I-485 application, the applicant will receive her permanent resident card (or green card).  There are some important issues related to this last step of the immigration process.

First and foremost, an applicant must ensure that she is not subject to any grounds of inadmissibility that would cause the denial of her green card.  The U.S. immigration laws specify certain classes of individuals who are not allowed to immigrate to the U.S.  For example, foreigners who have a communicable disease are not eligible to enter the U.S.  Similarly, individuals who have serious physical or mental disorder which may pose danger to others are also excluded from admission.  Persons who have been convicted for “crimes involving turpitude” are usually not allowed for admission.  There are some waivers and narrow exceptions to some of these grounds of exclusions but serious criminal offenders are most certainly not eligible for these exceptions.  If a person is found not eligible for a green card, she may also be placed in removal proceedings by the Department of Homeland Security.  Hence it is important to evaluate one’s background before applying for permanent resident status.

Extensive documentation is required to support an I-485 adjustment application including one’s immigration background documents, employment related documents, tax and financial documents, medical health report, and all the required application forms.  The fingerprints of the applicant will be taken and a thorough background check will be conducted by FBI.  The sponsoring employer must also provide evidence that it will permanent employment to the applicant. 

Another common issue of I-485 applicants is lapses in status in the past because of lay-offs and other reasons which resulted in their violations of nonimmigrant status.  A H-1B employee might have been “benched” by an employer in tough economic times; an F-1 student could have been failed to maintain a full-time course load due to financial or health reasons; etc.  Certainly applicants such as J-1 exchange visitors might also need a waiver for his foreign residence requirement.  Again, careful planning and analysis is required for applicants with specific status problems.

Foreign spouses and children of I-485 applicants are also eligible to apply for permanent resident status as derivative applicants.  Hence, if an applicant has plans to get married, he may want to adjust his plans in such a way that his future spouse would be able to adjust status as well.  However, sufficient evidence should be presented to prove that the marriage is not one of convenience.  The Department of Homeland Security will scrutinize new marriages carefully to ascertain that no elements of fraud are involved. 

The medical examination required for immigration can also be an issue for some applicants.  For example, many applicants from Asian countries initially test positive for TB (pulmonary tuberculosis), which is a contagious bacterial infection, although they have not been infected with the bacteria.  The false positive result could have been caused by previous vaccinations that they received in Asia.  Applicants must work closely with their attorney and physician to use further tests to confirm that they are not contagious.  Otherwise, they would not be eligible to receive a green card.     

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