Clarity and Strength in Immigration Law

October 2020 Visa Bulletin: FAQs for I-485 Preparation

Our office is in full swing I-485 prep mode, helping clients old and new file the I-485 application for adjustment of status, and sometimes a concurrent I-140 downgrade. We are list the Frequently Asked Questions and answers here, as a point of reference. If you would like more information from us about the I-485 process, or if you are ready to proceed, please complete this quick intake form.

Q1: Do I need to submit my medical exam now? 

A1: You can choose to submit your medical exam (Form I-693) with your filing, or you can wait until USCIS sends an RFE for it.

If you choose to obtain your medical exam now, your exam must have been signed by the physician within 60 days of the date that we file the I-485. If the exam is older than 60 days at the time of filing, it will not be accepted and you will later have to obtain a new one. The medical exam must be performed by a US civil surgeon. You can locate one here. The cost is usually around $250-$350, but it varies depending on the doctor and the specific requirements for you.

If you submit the medical exam with your I-485 filing, the exam will be valid for two years. It may take longer than two years for USCIS to adjudicate your I-485 filing. Therefore you may choose to wait and submit it later. If you choose not to submit the medical exam now, USCIS will still accept your I-485 filing. They will issue a request for evidence (RFE) closer to the time of final adjudication.

Q2: What if I am no longer employed by the employer who submitted the PERM labor certification?

A2: If Employer A filed your PERM labor certification and I-140 petition, and you are now working with Employer B, you have a few options:

  • You may return to Employer A now, and file the I-485 application (assuming you are otherwise eligible).
  • You may decide to return to Employer A as of the time that you receive your green card, but work elsewhere in the meantime. The employment-based green card process is prospective, meaning for future employment. It’s absolutely okay to work for the sponsoring employer while you are waiting. However, it’s also possible to work for another employer in the meantime. the key is that both you and the PERM-sponsoring employer must intend for you to work for the sponsoring employer at least beginning when you receive the green card, and there has to be a position available for you.
  • If you are not willing/able to return to Employer A, then you would need to start the process all over again. That means that Employer B would need to file the PERM labor certification for you, and then your employer would file the I-140 petition. It is not possible to “transfer” a PERM to a new employer. The PERM labor certification is employer-specific. That is true even if your position at Employer B is the same or similar position as the position you held with Employer A.

Q3: What confirmation do I need from my employer (or previous employer) to file the I-485? 

A3: The I-485 is really driven by the employee – it’s signed by the employee, the form asks for all kinds of information about the individual employee and their family, etc. However, you cannot just assume that the employer who sponsored your PERM labor certification will be willing to continue to sponsor you for the process. You must confirm that your employer is willing to continue sponsoring you, whether you are working for them or not. If you are working for them, hopefully that’s a non-issue. However, in either case, the employer must sign Form I-485J, which is the form that took the place of the confirmation of employment letter. Both the employee and the employer sign Form I-485J, to confirm what the proffered position is, and that it is still available for the foreign national applicant (you).

Q4: Should or can I file the I-140 “downgrade” petition in premium processing? 

A4: In general USCIS requires that we submit the original labor certification when we file an I-140 petition in premium processing. That being said, here are the options:

  • Request premium processing now and see what happens: If we are filing the I-140 downgrade petition to the same service center where your I-140 petition was originally filed, it’s possible that office still has it. It’s also possible that by now the file with the original labor certification has been sent to a different storage location. If USCIS is not able to premium process your petition, they should return the premium processing fee.
  • File in regular processing and then upgrade to premium processing once we receive the receipt notice: It could be that USCIS still would be unable to process in premium, but this is also an option. Please note that there is a $125 administrative fee to upgrade to premium processing after the petition is filed.
  • File in regular processing and keep it there: It’s not required, of course, to file in premium processing, and there is not necessarily a benefit. USCIS cannot “premium process” the I-485, and you’ll have to wait for your priority date to actually become current anyway, so there may not be a big benefit (if any).

Q5: If I choose to file an EB-3 I-140 petition, what happens to my approved EB-2 petition? 

A5: At this time, nothing would happen to the EB-2 petition. It would remain in place and approved. If/when the priority date becomes current for your EB-2 filing (per the final action dates), then you could “interfile” the EB-2 I-140 petition with the then-pending I-485 (which you would have filed based on the EB-3 filing). We have done this before in years past for clients, and it is possible to have two active I-140 petitions (EB-2 and EB-3). However, we cannot predict or guarantee what may happen in the future. It is possible that USCIS could change their policy and ask you to chose which I-140 petition you want to keep active, or it’s possible the regulations would change. Based on past experience, I don’t think that is likely to happen, but again, I cannot make a guarantee.

The process of interfiling means we would have to contact USCIS and ask them to attach the EB-2 I-140 petition to the pending I-485. Right now there is no form to do this, so it’s really a matter of sending letters and placing service requests and phone calls. It can be a bit of a pain just because there is no specific process for it, but we have done it before successfully several times. It is also possible that this process could become simplified (i.e. that USCIS could issue a form for it) in the future.

Q 6: How long will it take for me to receive the EAD and/or AP? 

A6: It depends! It depends on so many things. Because we anticipate a relatively high volume of filings based on the October visa bulletin, it could be that the EAD/AP processing takes longer than it is taking right now. Right now we are seeing anything from 2 months – closer to a year. Realistically, I would count on closer to a year right now. Current USCIS processing times are posted here.

Q7: What are the USCIS filing fees that apply? 

A7: Please see this blog post for late-breaking information about USCIS filing fees.

If you need help navigating this process with confidence, please contact us today to get the process underway! We are immigration lawyers in Richmond, VA but we serve clients throughout the US and around the world. You can call us at 804-396-3412 or send us an email to info@sumnerimmigration.com. We look forward to hearing from you.