Pending Form I-485 versus lawful nonimmigrant status
These concepts are frequently confused.
A pending Form I-485 generally gives the applicant a period of stay authorized by DHS for purposes relevant to unlawful-presence analysis. It does not itself convert the applicant into an H-1B, F-1, L-1, or other nonimmigrant.
| Concept | What It Means |
|---|---|
| Pending Form I-485 | A request for adjustment remains under adjudication. |
| Lawful nonimmigrant status | The applicant continues to satisfy the requirements of an H, L, F, O, or other nonimmigrant classification. |
| Period of authorized stay | DHS permits the person's presence while a qualifying application remains pending, although this does not necessarily constitute lawful nonimmigrant status. |
| Employment authorization | A separate legal basis authorizes employment. |
A person can have a properly pending Form I-485 without maintaining a separate nonimmigrant status.
Employment authorization while Form I-485 is pending
Many adjustment applicants are eligible to apply for an employment authorization document based on the pending Form I-485.
Employment may also be authorized through another immigration classification, such as valid H-1B or L-1 employment.
Applicants relying on an EAD should monitor expiration and renewal requirements and verify whether an automatic extension rule applies to the particular EAD category and filing.
Advance parole and international travel
Departure from the United States while Form I-485 is pending can result in abandonment of the adjustment application unless the applicant obtains advance parole before departure or falls within a recognized exception.
Advance parole is generally requested through Form I-131.
An adjustment applicant who requires advance parole should obtain it before leaving the United States and should return while the travel document remains valid.
Travel can also expose separate immigration problems involving inadmissibility, prior removal orders, unlawful presence, or pending proceedings. The abandonment question is only one part of the travel analysis.
Travel exceptions for certain H and L nonimmigrants
Immigration regulations and USCIS instructions contain exceptions to the ordinary abandonment rule for certain H and L nonimmigrants and qualifying dependents who satisfy the applicable requirements and return in the appropriate classification.
This protection can allow a qualifying H-1B or L-1 principal and certain H-4 or L-2 dependents to travel without abandoning a pending Form I-485, provided the regulatory conditions are met.
Specialized rules also exist for certain K-3, K-4, and V nonimmigrants.
Travel while removal proceedings are pending
Applicants in removal proceedings require a separate travel analysis. Departure can have consequences beyond the ordinary advance-parole rules and may affect immigration-court jurisdiction, outstanding removal orders, or the pending adjustment application.
Any applicant with a prior or pending removal proceeding should determine the status of the EOIR case and any existing order before international travel.
Visa retrogression while Form I-485 is pending
A preference-based Form I-485 can be properly filed when the applicant's priority date satisfies the applicable filing chart and later become unavailable for final approval because the Visa Bulletin retrogresses.
Retrogression does not ordinarily require filing a new Form I-485. USCIS can continue processing the case but cannot finally approve it until a visa number is again available.
Changing address while Form I-485 is pending
An applicant who moves should promptly comply with USCIS change-of-address requirements and separately update each pending case where necessary.
Failure to update the address can result in missed:
- Biometrics notices;
- Interview notices;
- Requests for Evidence;
- Notices of Intent to Deny;
- Decisions; or
- Other time-sensitive correspondence.
Applicants in immigration-court proceedings may also have separate EOIR address-reporting obligations.
Changing jobs or employers while Form I-485 is pending
The effect of a job change depends on the immigrant classification.
Job-offer-based employment cases
Qualifying EB-1, EB-2, or EB-3 applicants may be able to use INA §204(j) portability when the adjustment application has remained pending for at least 180 days and the new permanent job is in the same or a similar occupational classification.
EB-1A and NIW applicants
These classifications do not depend on the ordinary employer-specific permanent job offer. A change of employer does not therefore operate under the same AC21 framework, although the applicant must continue to satisfy the underlying immigrant classification.
Marriage, divorce, and death while Form I-485 is pending
Changes in family relationships can have major consequences when the relationship is part of the immigrant classification.
Marriage
Marriage can create a new immigrant basis, change a derivative child's eligibility, affect a preference category, or create a potential transfer-of-basis opportunity.
Divorce
Divorce can terminate a marriage-based immigrant classification before adjustment approval and can also affect derivative status.
Death
Death of a petitioner or principal beneficiary does not necessarily end every immigration case. Depending on the facts, INA §204(l), widow(er) provisions, humanitarian reinstatement, or another statutory rule may preserve eligibility.
Arrest or criminal charge while Form I-485 is pending
A new arrest, citation, criminal charge, or conviction can affect admissibility, discretion, and the accuracy of answers previously given on Form I-485.
The applicant should obtain and preserve:
- Charging documents;
- Police or arrest records where obtainable;
- Certified court dispositions;
- Plea and sentencing records;
- Probation records where relevant; and
- Evidence of any later dismissal, diversion, or completion.
Transfer of underlying basis while Form I-485 is pending
USCIS may, as a matter of discretion, allow a pending adjustment application to be transferred from one qualifying immigrant basis to another.
Examples include:
- Employment-based applicant later becomes the spouse of a U.S. citizen;
- Family-based applicant obtains a qualifying employment petition;
- EB-3 applicant obtains an EB-2 or EB-1 petition;
- Applicant obtains a new special immigrant basis; or
- A Diversity Visa basis becomes available while another I-485 is pending.
USCIS generally requires:
- The Form I-485 to remain pending;
- Continuity of adjustment eligibility;
- Eligibility under the proposed new basis;
- An immigrant visa immediately available where the new category is numerically limited; and
- A written transfer request.
RFE or NOID while Form I-485 is pending
USCIS may identify a factual, evidentiary, or legal problem at any point before final adjudication.
An RFE or NOID can concern:
- Underlying immigrant eligibility;
- Visa availability;
- Admission or parole;
- Unauthorized employment;
- Failure to maintain status;
- INA §245(k);
- Form I-864;
- Medical evidence;
- Marriage bona fides;
- Criminal history;
- Fraud or misrepresentation;
- Continuing employment eligibility; or
- Any other element required for adjustment.
What if Form I-485 has been pending a long time?
Processing time varies by adjustment category, USCIS office, security checks, interview requirements, visa availability, RFEs, and other case-specific factors.
Before concluding that a case is unlawfully delayed, determine:
- Which USCIS office currently controls the case;
- Whether a visa number is presently available;
- Whether USCIS is waiting on an underlying petition;
- Whether an RFE response or interview remains outstanding;
- Whether background checks are unresolved;
- Whether the case falls outside USCIS's published inquiry date; and
- Whether a service request or other escalation mechanism is appropriate.
What happens if the pending I-485 is denied?
The consequences of denial depend on the applicant's independent immigration status, the reason for denial, the underlying petition, and whether removal proceedings exist or follow.
Potential options may include:
- Form I-290B motion to reopen;
- Motion to reconsider;
- Combined motion;
- Refiling Form I-485 where still eligible;
- Requesting adjustment before an immigration judge where jurisdiction permits;
- Challenging the underlying petition decision;
- Consular processing where appropriate; or
- Federal-court litigation in a legally reviewable case.
The first task is to identify exactly what USCIS decided: loss of the immigrant basis, a §245 bar, inadmissibility, lack of evidence, discretionary denial, abandonment, visa availability, or another procedural problem.