To file an adjustment of status application (or green card application) from within the US, the form I-485 is filed with USCIS. However, with certain exceptions, a person must be in valid immigration status at the time of filing the adjustment of status application with USCIS.
Many times though clients ask if they must maintain the nonimmigrant status while the I-485 adjustment of status application is pending with USCIS.
Generally speaking, once a person has filed the adjustment of status application, the person is considered to be in a period of stay authorized by the attorney general. This period of authorized stay continues until a decision is made on the application. Therefore, generally, it is not strictly required that a person maintain nonimmigrant status while their I-485 application for permanent residence is pending.
However, at Sumner Immigration Law, we like to advise for the worst possibility so our clients are well-prepared and hope for the best outcome. Therefore, we generally recommend that a person maintain nonimmigrant status, if possible, until the I-485 is approved. That way if for some reason the I-485 is unexpectedly denied the applicant at least has a nonimmigrant status to fall back on while strategizing for the next step. That said, in some instances it is not possible to maintain nonimmigrant status, or not desired. Further, in some instances it may not be possible to maintain nonimmigrant status – for example, an F-1 student may not be able to travel internationally and return on the F-1 visa once the I-485 is filed. Therefore, whether you maintain status or not, it is important to speak with an experienced immigration attorney to make sure you increase the chances for smooth processing.