1.
The Portability Provisions and Changing Employer after I-485 Application
Because
an I-485 application is based on the alien’s intention to continue working for
the employer after receiving U.S. permanent residence, even if the principal applicant receives
an EAD, the alien applicant has traditionally been required to continue to work for the employer
who filed the underlying I-140 petition. However, the American Competitiveness in the 21st Century Act
(AC-21) altered this requirement.
AC-21 allows I-485 applicants to use an EAD to change employers, once their
I-140 applications have been approved and the I-485 adjustment applications have been filed and remained unadjudicated for 180 days or more. The ability to change employers is referred to as “portability.”
The portability provisions only permit adjustment applicants to work in a new position that is the “same or similar” to the position described in the applicant’s approved
I-140 petition.
If an I-140 petition has been pending for at least 365 days,
you can extend an H-1B visa status for one year at a time beyond the normal 6-year maximum. If the U.S. Department of State Visa Bulletin indicates that a country remains backlogged once the I-140 has been
approved and you can not file I-485 application, you can extend an H-1B visa status for up to three years.
2.
The Fingerprinting (or Biometrics
Services) Requirement of the
I-485
Status Adjustment Application
After I-485 application, the U.S. Citizenship and Immigration
Services (USCIS) requires applicants of age from 14 to 79
to be
fingerprinted for the purpose of conducting FBI criminal background checks. To
better ensure both the quality and integrity of the process, the USCIS processes fingerprint cards for immigration benefits only if an authorized
fingerprint site prepares them.
After receiving your I-485 adjustment application, the USCIS will mail you a notice
scheduling you to appear for a fingerprinting at a USCIS designated location. The
notice will specify a week for the applicant to appear. The fingerprints are a requirement for every applicant
at age 14 through 79 years old to determine if they have a criminal history.
The USCIS will submit the
fingerprints to the Federal Bureau of Investigation (FBI) for a background
check, which will be completed before an adjustment application is approved.
In
addition to the filing fee for the I-1485 adjustment application, there is a fingerprinting
fee (or biometrics services fee) charge for this procedure. The fingerprinting
fee must be paid at the time of
filing of the I-485 status adjustment application, before the completion of a fingerprinting.
Applicants
residing outside the United States must be fingerprinted at a U.S. consular, and submit their fingerprints with their adjustment filing. These
applicants will not be charged the USCIS fingerprinting fee. However, the
consular may charge a fee for this service.
3.
The Fingerprinting Process
A definitive response from the FBI regarding fingerprint clearances is required before the
I-485 status adjustment application can be approved or transferred to the local office for interview. Applicants who do not appear at the fingerprinting within the time frame allowed
will be denied as an abandonment of their I-485 application for failure to appear.
Previously, the fingerprinting notices would arrive at varying times during the case process. They were not tied to
the case progress. In the event that the fingerprint report was too old by the time the case was ready for adjudication,
the new prints would be required.
Authorized
fingerprint sites include USCIS offices, Application Support Centers (ASCs),
designated law enforcement agencies, and U.S. consular offices and military
installations abroad. In general, USCIS schedules people to be fingerprinted at
an authorized fingerprint site after an application or petition is filed.
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