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Factors to consider before filing the adjustment of status application for spouses of U.S. Citizens

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Before filing your green card application, it is important for you to carefully consider several important factors that may limit your ability to obtain employment in the United States and restrict your international travel. If you will be filing your green card application in the near future, you need to be prepared to remain in the United States for a period of at least 90 days, from the date of filing of your green card application. Applicants must also be aware that they will not receive authorization to work in the United States until this 90-day period has passed. Limited exceptions exist which may allow an applicant to expedite the adjudication process of the employment and travel authorization applications which we will discuss below.

Why the 90-day restriction period?

As part of the green card application, the applicant may file the I-765 Application for Employment Authorization and the I-131 Application for Travel Document at no additional cost. The I-765 and I-131 applications result in the issuance of a one-year temporary employment and international travel authorization card (EAD), while the green card application is being adjudicated by USCIS. It takes on average 90 days for the EAD card to be issued, from the date of filing of the green card application. This ultimately means that once you apply for permanent residence, you will not be able to seek employment or travel outside of the country until the EAD card is issued to you within 90 days. Once the green card application has been filed with USCIS, the applicant is restricted from any international travel. If the applicant travels without authorization, USCIS will consider the applicant’s green card application ‘abandoned.’ An applicant may only travel internationally if they have received a re-entry permit issued by USCIS known as an ‘advance parole’ document. The ‘advance parole’ notice will appear on the front of the EAD card itself signifying that the applicant is authorized to travel internationally using the card.  The ability to re-enter the United States after returning from temporary foreign travel is ‘discretionary.’ This means that even if you have been issued an EAD card that allows you to travel, it will ultimately be up to the customs official to admit you into the United States.

Consider the alternatives

Before applying for your green card you should carefully consider whether these travel and employment restrictions will have a significant impact on your lifestyle. If the travel restrictions are concerning to you, it may be a more beneficial option for you to apply for an immigrant visa from a U.S. Consulate abroad. There are no travel restrictions for applicants who apply for immigration benefits from abroad. Likewise, if you are concerned that you will not receive employment authorization immediately, it may be worth considering applying for a dual intent work visa first to cover any gaps in employment. There are limited work visa categories that allow for dual intent, or the intent to have a temporary visa status at the same time as having the intent to remain permanently in the United States. If this is the case, you should consult with an attorney to discuss your options.

Please Note: The employment restriction does not apply to highly skilled workers and professionals who remain in the United States, on work visas which allow for dual intent. These individuals are typically residing in the United States on a work visa that allows them to apply for adjustment of status at the same time that they are legally employed. such as the H-1B, L-1A visas. Additionally, travel restrictions do not apply to consular processing applicants, although they do not receive temporary employment authorization.

Requests for Evidence

If you have filed your green card application, but your spouse does not meet the income requirement to sponsor your green card application based on their household size, you will receive a request for evidence from USCIS either asking you to provide more evidence proving that your spouse can support you financially while in the United States, or asking you to obtain a joint sponsor who can prove that they can support you. Requests for evidence are important because they delay the green card process significantly, and more importantly the issuance of the EAD card. If you receive a request for evidence asking for more evidence for the I-864 Affidavit of Support, the green card application itself and the I-765 and I-131 applications will stop being adjudicated by USCIS until you provide the documentation requested. Due to this, we recommend that you do not file the affidavit of support application without an attorney’s review. The affidavit of support is commonly filled out incorrectly and the wrong supporting documentation is typically provided. If your spouse is self-employed or retired, it is important to read the affidavit of support instructions very carefully to avoid any requests for evidence.

Expediting issuance of employment and/or travel authorization

It is possible to expedite the issuance of the I-765 application if the applicant has a legitimate job offer in writing. Often times however we see that USCIS may still take the full 90 days to review the job offer and approve the expedite request. It is also possible to expedite the I-131 application in limited circumstances that constitute an ‘emergency’ that requires the applicant to travel abroad due to unforeseen circumstances such as death or serious illness of an immediate relative. It is strongly discouraged to seek an expedite request for travel authorization. Even in emergency situations, immigration officers have not approved expedite requests for international travel prior to the 90-day period of adjudication.

Lost EADs

There are situations in which the EAD card may become lost in transit either because USCIS did not have the correct address on file, the applicant failed to notify USCIS that they had moved, or the postal service simply lost the EAD card. These situations are indeed very stressful, because they are very difficult to resolve. Often times it is recommended that applicants simply re-file the applications and submit an expedite request if the card was lost by USCIS or the postal service. Due to this, our office always informs our clients not to make any travel plans until they have received their EAD card in the mail.

For more information please contact our office.