*This article marks an update from the previous article titled After GC Filing: Important Immigration Considerations While Your I-485 is Pending posted on November 6, 2020.

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 you permission to stay in the United States while USCIS adjudicates the application, it does not provide legal status. If you filed an I-765 application and I-131 application with your adjustment package, once approved, you will have work authorization and advance parole allowing you to travel while your I-485 application is pending. ILBSG cautions its clients against relying on the EAD alone for work authorization. Instead, we STRONGLY advise maintaining a valid and separate legal status such as H1B or H4 which will allow you to stay in the U.S. for by any reason your I-485 application is denied. If your I-485 is denied and you failed to maintain a separate valid legal status, 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, leaving the United States once your I-485 has been filed is generally considered an abandonment of the application and will result in automatic termination of your application UNLESS (1) your Advance Parole (Form I-131) has been approved and you have received your card OR (2) you are currently in H or L Status only. Although option 2 is viable, ILBSG recommends traveling aboard after your Advance Parole is approved since that gives your permission to travel while the your I-485 application is pending. If you are currently on H or L status, and you need to travel while both the I-485 and I-131 are pending, you must be in a valid H or L status before leaving the United States and you must use your H or L status to be admitted to the United States. Lastly, you must continue to work for your H or L employer after being admitted to the U.S. to preserve your I-485 application. Even after your Advance Parole is approved, we recommend using your valid nonimmigrant status to reentry in the U.S. to ensure you have a backup, as explained above, in case of an adverse decision in your I-485.

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.

filing green card i-485 immigration