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FAQs: Adjustment of Status (3rd Step) Questions
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Q: Under AC21's permanent residence portability provision, someone whose I-485 application has been pending for 180 days or more can change employers if the new job is in the same or a similar occupational classification as the one for which the petition was filed. How do you define similar or same occupational classification?
A: The new law does not specifically address this issue. It appears that if you are working as a Software Engineer and moving to a similar Software Engineering role at another company, you can still benefit from the Adjustment of Status application. However, if you accept a Software Engineering Manager role, the USCIS is likely to find that you are no longer in the same or similar occupation.
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Q: What if the new job opportunity it not in the same geographical area?
A: This issue has not been addressed by regulations. However, the portability provision is meant to help an applicant suffering through the long adjudication process by allowing him/her to accept employment that s/he would otherwise be able to, but for the long adjudication process. Thus, we believe one would be allowed to accept employment in other geographical areas since s/he would be able to do so had the USCIS adjudicated the application timely, despite the fact that the test of the job market (for labor certification originated cases) was for a specific geographical area.
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Q: Is the I-485 applicant still portable if the employer revokes the underlying I-140 or the approved Labor Certification?
A: If the I-140 has already been approved and then the employer withdraws the approved I-140 after the AOS application has been pending for 180
days, the approved I-140 remains valid with respect to your new offer of employment in accordance with AC21. You will have to submit evidence
to demonstrate that the new offer of employment is in the same or similar occupational classification as the offer of employment for which the
I-140 was filed.
If the approval of I-140 is revoked or the pending I-140 is withdrawn before the AOS application has been pending 180 days, the approved I-140 is no
longer valid with respect to a new offer of employment and the AOS application may be denied.
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Q: Do I need to apply for an EAD card and an advanced parole when I file for adjustment, if I have H-1B status or L-1 status?
A: In the past, whenever we have filed an adjustment application, requests for employment authorization and advance parole were also filed. This was done to ensure that the individual would be able to continue working and traveling even if s/he ran out of time in H-1B status. Given the provisions of the new law, which allow for H-1B extensions until the adjustment is adjudicated, the constant extensions of these two documents (EAD and advanced parole) are merely optional. Adjustment applicants, who are in H-1 or L-1status, may continue to work and travel pursuant to their H-1B nonimmigrant visas. However, if your spouse/children in H-4 or L-2 status wish to work, they should apply for the EAD card.
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Q: What vaccinations are needed?
A: Effective May 3, 1997, applicants for residency status are required to provide the USCIS examining physician with evidence of vaccinations for a variety of illnesses including mumps, measles, rubella, polio, tetanus, diptheria toxoids, pertussis, influenza type B and hepatitis B, varicella, haemophilus influenza type B, pneumococcal, and any other vaccine preventable disease which may be added to the list. If the physician indicates that an applicant lacks the required vaccinations, the applicant will not be medically cleared for approval of adjustment of status and will need to obtain these vaccinations before continuing the process.
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Q: Can my personal doctor give vaccinations?
A: Yes. You should start collecting your records now.
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Q: Can I get waivers for vaccinations?
A: A waiver may be available to individuals who seek exemption from the vaccinations due to medical or religious reasons. Please see an USCIS approved doctor.
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Q: Can I ask my own doctor to complete the required medical forms?
A: A. You must have an USCIS approved doctor complete the required medical form. You may find information on the closest doctor to where you reside at: 1 (800) 375-5283.
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Q: Can I download the USCIS approved form?
A: Please click here.
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Q: I was vaccinated in my home country, can my doctor provide proof?
A: Yes. Start gathering information from your family records/previous doctors and provide to the approved USCIS physician.
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Q: I did not marry my child's mother, can my child adjust with me?
A: As long as there is proof of paternity.
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Q: What is causing the Indian/PRC backlog?
A: The U.S. allows a limited number of people to immigrate per fiscal year. Those born in India and the PRC are impacted because these countries are high immigration countries.
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Q: Do I need to fill out an Affidavit of Support?
A: Yes, you will need to sign the affidavit of support on behalf of accompanying family members.
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Q: What is Foreign State Chargeability/Cross Chargeability?
A: If your spouse was not born in a high impact immigration country (e.g. P.R. China or India), you can benefit from your spousešs place of birth to expedite the filing of your adjustment of status.
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Q: My child is 18 years old, can s/he adjust with me?
A: Yes, children under the age of 21 who are single can adjust.
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Q: I have adopted a child, can s/he adjust with me?
A: Yes your child can immigrate with proof of legal adoption which is recognized by the U.S. before the age of 16.
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Q: I have a step-child, can s/he adjust with me?
A: If biological parent releases and the marriage to parent is legitimate, yes.
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Q: When is the latest I can get married and have my spouse included in my adjustment process?
A: Strictly speaking, the latest you can get married and have your spouse benefit from the adjustment is any time before the adjustment is approved. Since we are never sure of USCIS processing time, it is safer to be married at the time the adjustment application is filed.
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