After GC Filing: Important Immigration Considerations While Your I-485 is Pending

As many ILBSG clients recently filed I-485 applications based on the October Visa Bulletin and others may seek to utilize the November Visa Bulletin, this article will address some important considerations for maintaining status until the I-485 is approved. This is critical, since failure to maintain status can result in a denial of the application. While most applicants include an I-765 application with the adjustment package, ILBSG does not advise relying on the EAD alone and instead encourages its clients to continue to maintain their current nonimmigrant status until the I-485 is approved.

While submitting an I-485 application does provide status which allows you to remain in the U.S. while it is pending, it does not provide work authorization or travel authorization. If you filed an I-765 application and I-131 application with your adjustment package, you will eventually get an EAD/Advance Parole card, but ILBSG cautions its clients against relying on the EAD alone for work authorization. If your I-485 is denied, you will be out of status immediately. You would then have to depart the U.S. and apply abroad for a nonimmigrant visa classification to return to the U.S.

Further, if you filed an I-131 and your nonimmigrant status expires before the I-131 is approved, you will not be able to travel outside the U.S. or your I-485 application will be abandoned. You would have to wait for the I-131 to be approved first, which can take some time (historically 4-6 months, but we anticipate longer processing times in light of the high volume of requests). On the other hand, if you continue to extend and maintain your nonimmigrant status, you can travel in and out of the U.S. as you please without jeopardizing your I-485. As long as you depart and reenter in your nonimmigrant status (i.e. H-1B status), your I-485 application will be unaffected by your travel.

With the uncertainty facing the H-1B program at the moment, we understand it may be tempting to stop extending your H-1B status and utilize the EAD instead. However, we strongly encourage all clients to continue extending and maintaining nonimmigrant status until the I-485 applications are approved, to avoid any lapse in status or work authorization. The recent changes in the H-1B program have already been promptly challenged by lawsuits and we anticipate an injunction or other favorable outcome will provide relief soon.

As always, we will update our clients on any new developments in these areas. In the meantime, please reach out to an ILBSG attorney if you have any questions regarding these issues. We are here to help.