Quick Summary: I-485, EAD and Nonimmigrant Status
| Question | Answer |
|---|---|
| What is adjustment of status (I-485)? | The process of changing from nonimmigrant to lawful permanent resident status while remaining inside the United States |
| Who can file Form I-485? | People lawfully present in the U.S. on a nonimmigrant visa who are the beneficiary of an approved immigrant petition (I-130, I-140 or I-526/I-526E) |
| What is an EAD? | Employment Authorization Document issued while Form I-485 is pending |
| Does using an EAD end F-1 or H-1B status? | Yes: using an EAD automatically ends prior nonimmigrant status |
| What happens if I-485 is denied after using the EAD? | No longer in lawful status; likely must depart the United States |
| When should you keep prior nonimmigrant status? | When you want a safety net in case the I-485 is denied |
| Consequence of remaining unlawfully for 180+ days? | 3-year bar on re-entry to the United States |
Eligibility to File Form I-485 Inside the United States
| Requirement | Details |
|---|---|
| Lawfully present in the U.S. | Entered lawfully and not currently in overstay status |
| Approved immigrant petition | Form I-130 (family), I-140 (employment) or I-526/I-526E (EB-5 investment) already approved by USCIS |
| Visa number available | Priority date must be current for the applicant’s nationality per the monthly DOS Visa Bulletin |
| No applicable grounds of inadmissibility | Must not be subject to grounds of inadmissibility under immigration law |
Many persons who are lawfully present in the U.S. in valid nonimmigrant visa status are eligible to file a Form I-485, Application to Register Permanent Residence or Adjust Status (“I-485 Application”) and “adjust” their status from nonimmigrant status to lawful permanent resident status if they qualify for an immigrant visa classification. For example, nonimmigrants in the U.S. as F-1 students or H-1B temporary workers can file to adjust their status if they are the beneficiary of an approved immigrant petition like an I-130, I-140 or I-526.
Upon filing their I-485 Application and receiving an Employment Authorization Document (“EAD”) card, that person may be considered to be in pending I-485 status and can seek any employment or education opportunities outside of those restricted by their nonimmigrant status. If that person uses the EAD, he or she will lose the previously valid nonimmigrant status (e.g. F-1 or H-1B).
If the I-485 Application is approved, the person will be granted lawful permanent resident status and receive their “green card” identification. However, if the person’s I-485 Application is for some reason denied, then he or she will no longer have the previously valid nonimmigrant status and will most likely have to leave the United States. That person will also begin to accrue unlawful presence in the United States. An accumulation of more than 180 days of unlawful presence can result in a 3 year bar of readmission into the United States.
While most I-485 Applications should be approved, a person should consider carefully whether to remain in their preexisting valid nonimmigrant status or use the flexibility of the EAD card to expand their options while waiting for the adjustment of status to be approved. For example, an H-1B worker may consider staying with their sponsoring employer and continuing to work under the H-1B status, or a F-1 student who may have several years of degree program remaining should consider no change to his or her status while completing the university degree.
Frequently Asked Questions
What is adjustment of status and who can file Form I-485?
Adjustment of status through Form I-485 allows a foreign national lawfully present in the United States on a nonimmigrant visa to become a Lawful Permanent Resident without leaving the U.S. to apply for an immigrant visa at a consulate abroad. To qualify, the applicant must have an approved immigrant petition (I-130, I-140 or I-526/I-526E), a visa number must be currently available for their nationality per the Visa Bulletin, and they must be lawfully present in the U.S.
Does using an EAD based on a pending I-485 end F-1 or H-1B status?
Yes. When you begin working using an EAD, your prior nonimmigrant status (F-1, H-1B or any other category) is automatically terminated. Simply receiving the EAD card without using it does not automatically end your prior status. The decision whether to use the EAD requires careful evaluation of the risks involved and should be made in consultation with an immigration attorney before taking action.
What happens if I have been using my EAD and my I-485 is denied?
If you have been using your EAD and your I-485 is subsequently denied, you will no longer have valid nonimmigrant status and will likely need to depart the United States. Remaining in the U.S. for 180 days or more after the denial will result in a 3-year bar on re-entry; remaining for 365 days or more will result in a 10-year bar. This is why a careful risk assessment before using the EAD is essential.
Should an F-1 student use their EAD while Form I-485 is pending?
Not necessarily right away. An F-1 student with several years of study remaining should carefully consider keeping their F-1 status during the I-485 pending period. Using the EAD will terminate F-1 status, which could affect the right to continue studying if the I-485 is ultimately denied. After graduation, when flexibility to work in any position is more valuable, is generally a better time to evaluate whether to begin using the EAD.
Should an H-1B worker use their EAD while Form I-485 is pending?
This depends on the specific circumstances. If you want to continue working for the same sponsoring employer, maintaining H-1B status may be the safer option as it provides protection even if the I-485 encounters problems. However if you want to change employers or fields, an EAD provides significantly more flexibility. Consult an immigration attorney before making this decision as it has important and potentially irreversible consequences for your legal status.
If you have questions about adjustment of status or using the EAD card, contact us at info@enterlinepartners.com and speak with a U.S. immigration attorney in Ho Chi Minh City, Manila and Taipei.
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Copyright 2022. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of Enterline and Partners only.
