What is the I-485?

The I-485 is the “adjustment of status” filing, a/k/a the green card application. The I-485 can be filed when your priority date (your place in line) is current and you are physically present in the U.S. with legal status.

The I-485 will be filed for you and any eligible dependents (spouse and unmarried children under 21). Along with the I-485 application, we will also file the green card-based I-765 Employment Authorization Document (EAD) and I-131 Advance Parole (AP). The EAD and AP are options for temporary work authorization and permision to travel that you can use while your I-485 green card application is pending.

Who files the I-485?

The attorney will file the I-485 green card application on your behalf.

Do I have to be in the U.S. to file the I-485?

Yes, you must be physically present in the U.S., and in legal status (such as F-1, J-1, etc.) to file the I-485 application. The I-485 application cannot be filed if you are physically outside the U.S.

Is premium processing available for the I-485?

No, there is no premium processing option available for the I-485 application.

What documents are included in the I-485?

We will send you a questionnaire link to fill out for the I-485 application, and you can then provide all applicable documents for each green card applicant (you plus each dependent). The questionnaire will provide instructions on how to provide the below documents to us.

What is the Visa Bulletin?

The Visa Bulletin is issued every month by the Department of State. It shows which green card applications can be filed, and which filed applications can move forward to green card issuance, based on when the LC was filed. The Visa Bulletin also lets you estimate how long it will take before you get your green card.

What is a priority date, and why does it matter?

The priority date is the date your LC was filed. Think of the priority date as your place in line, because it determines when your green card application can be filed and when your green card can be issued. If your priority date is not current for green card filing on the Visa Bulletin (meaning that your priority date is after the cutoff date), the employer can file the I-140 petition, but you will not yet be able to file your actual green card application.

What is retrogression?

When the number of green card applications exceeds the expected number of filings, the Visa Bulletin may go into retrogression, or reflect cut-off dates for your priority date (your place in the green card line) that move backward. This happens as the government tries to balance the demand to stay within the visa cap for each category of visa.

What is cross-chargeability?

Generally, your place in line for when you can apply for and obtain an employment-based green card is based on your employment-based category - in this case, EB-3 unskilled, plus your country of birth. A few countries of birth have long visa backlogs (such as India and China).

“Cross-chargeability” is a useful exception. Under cross-chargeability, if you and your spouse were born in different countries and you both want to apply for green cards, you may elect to be “charged” to your spouse’s country if the green card line for your spouse’s country is faster. For example, if you were born in India but your spouse was born in France, cross-chargeability would allow you to use your spouse’s country of birth (France) to apply for the green cards for you and your spouse sooner.

Can my I-140 and I-485 be filed at the same time?

Yes, if your priority date is current for filing the green card application, the I-140 and I-485 can be filed together. Otherwise, if your priority date is not current, the I-140 will be filed first, and you will need to wait until your priority date is current before your I-485 can be filed later.

Can my children obtain a green card?

Applicants for green cards may include their unmarried children under the age of 21 on their green card applications. To decrease the risk of children “aging out” (i.e., turning 21 before approval of the green card), the U.S. government created the Child Status Protection Act (CSPA) which locks in the child’s age in what is known as the “CSPA age”.

To qualify for CSPA:

If the above qualifications are met, then the CSPA age is calculated by applying this formula:

Age at time of visa availability - Pending time of I-140 = CSPA Age

Let’s apply this formula to an example.

Now apply the CSPA formula:

21 years and 2 months – 5 months = CSPA age of 20 years and 9 months.

This means that, in this example, your child has not aged out and would be eligible to apply for a green card.

NOTE: Because the Visa Bulletin is updated every month, if your LC has not been filed or is still pending, BDV cannot yet predict whether your child will age out before your priority date is current. Please let BDV know if you have an unmarried child who is 18 years or older. We will flag it for your assigned attorney to do a CSPA analysis once your LC is approved to see whether your child would be eligible for green card filing under CSPA.

Do my dependents need their own I-140 approval?

No. Your dependents do not need a separate I-140 approval. If your priority date is current, your spouse and unmarried children under 21 years of age can file the I-485 using your I-140.

Can my dependents file their I-485 with me?

Yes. If you are eligible to file the I-485 application, your spouse and unmarried children under 21 years of age are also eligible to file their I-485 applications. In most cases, we recommend that you and your dependents all file I-485s at the same time.

Does each of my dependents need a separate I-485?

Yes. Each person will need their own I-485 application.

What if I get married after the I-485 has been filed but while it is still pending. Can my spouse file an I-485 after the marriage?

Yes. If you get married while your I-485 application is still pending, your spouse would be eligible to file an I-485 application after the marriage. However, your spouse must be physically present in the U.S. in legal status to file the I-485 application.

Generally, if you anticipate getting married around when your I-485 application will be filed and your spouse is in the U.S. in valid status, you may consider waiting until after marriage to file the I-485 applications together. Filing for you and your spouse at the same time will simplify the process for your family, and could reduce processing time. Please let us know if you have upcoming marriage plans while we prepare your I-485 application. The attorney can then advise you on your specific options.

Do I have to provide my income, assets and debts on my I-485 application?

Yes. The I-485 application requires you to enter your household income, the value of your assets, the amount of debts you hold, your education level, and any degrees or licenses you have. You also must disclose whether you received public cash benefits or long-term institutionalization. This information is necessary so that the government can evaluate whether you will be a public charge.

Will I be considered a public charge if I don’t have any current income, because I am a student or a temporary visitor?

No, you will likely not be considered a public charge just because you don’t have current income. USCIS will not use any one factor to determine whether you could be a public charge – it will look at the totality of factors, including age, health, family status, income, debts, education, skills, and whether you received public cash benefits in the past.

My I-485 has been filed. How long until I receive my green card?

USCIS’s processing time for the I-485 can vary. For the latest estimate, please see https://egov.uscis.gov/processing-times/. On average, we are seeing USCIS take approximately 20+ months to process I-485 applications if your priority date remains current for green card issuance. Processing time can take longer if your priority date retrogresses (meaning that the line moves backward).

What is a Request for Additional Evidence?

Once USCIS begins processing the filed I-485, it may decide to request additional documentation before it can approve the petition. USCIS will send your attorney a Request for Evidence (RFE) letter describing what additional documents are needed, and it will provide a deadline for the response. Once your attorney submits the response, USCIS will resume processing the I-485.

My I-140 is approved. Does this mean that my I-485 will be approved?

Not necessarily. The I-485 (green card application) looks at issues that were not reviewed as part of the I-140 petition. For example, if you have a criminal record, worked without authorization, or had extended periods of unlawful presence in the U.S., this could impact your ability to get the green card even if your I-140 was approved. At the I-485 stage, the attorney will carefully review your immigration history and background to flag any possible issues you may encounter for green card processing.

Can I travel while my I-485 is pending?

If you are in a non-immigrant status (ex: F-1, O-1, TN, E-3, J-1, etc.), you can travel internationally and re-enter the U.S. in the non-immigrant status even after your I-140 is filed and/or approved. However, there will be international travel restrictions at the I-485 stage. We generally advise waiting at least 60 days from your last entry into the U.S. in the non-immigrant status before filing the I-485 application. In addition, you will not be able to travel internationally from when the I-485 is filed to when the advance parole (travel permission) is issued, which could be 5-8 months.

Can I drop my current status in the U.S. after the I-485 is filed?

Yes. Once the I-485 is filed and pending, you do not need to maintain your current visa status. You can stay in the U.S. as an “AOS applicant”. However, if you drop your current visa status, you will not be able to work or travel until the I-485-based EAD and advance parole are issued.

When can I drop my F-1 status?

The pending I-485 grants you a period of authorized stay in the U.S. If you have an approved I-140 and a pending I-485 application, you are generally allowed to drop F-1 status and can remain in the U.S. as an “AOS applicant”. After you receive your green card-based EAD card, you will work with BDV’s Client Services team to coordinate your start date and onboarding with your EB-3 sponsor. At that time, you can contact your university and let your DSO know that you will be dropping your F-1 status because you are an AOS applicant and will be working full-time for your sponsor.

When do I need to start working for my EB-3 sponsor?

Once you receive both your I-140 approval and green card based EAD approval, BDV’s Client Services team will assist you with the relocation process to start working for your sponsor. Our timeline is for clients to start working for their sponsors within 60 days from I-140 and EAD approval. Because your sponsor has a chronic labor shortage, you cannot delay starting work.

When should I move to my EB-3 sponsor’s worksite?

Once you receive both your I-140 approval and green card based EAD approval, BDV’s Client Services team will assist you with the relocation process to start working for your sponsor. Please DO NOT move to your sponsor’s worksite until you are contacted by the Client Services team to align on start date, specific worksite address, and orientation process.

I have worked for my EB-3 sponsor for one year and my I-485 is still pending. Can I transfer to a different sponsor?

You must satisfy your contractual agreement to work at least one year for your sponsor. If your I-485 is still pending after one year of work, we generally recommend that you remain employed with your sponsor. However, you may be able to transfer if the new position satisfies the "same or similar occupation" requirement for changing roles. Please reach out to the attorney for a legal evaluation and risk assessment at that time. If the attorney advises that this is possible, they will need to submit a Supplement J form to the government. Please note that this legal work is an additional fee, and it is not included in your contract with BDV.

What happens if I do not work for my EB-3 sponsor?

The EB-3 is an employment based green card program, where your employer is sponsoring you for a green card based on your willingness to work in the full-time, offered position. BDV’s Client Services team will help you with the relocation process to start work. Below are 5 consequences if you do not work for your EB-3 sponsor.

After I receive my green card, how long do I need to reside in the U.S. until I can apply for U.S. citizenship?

In general, you will need to wait five years from the date you receive your permanent residence/green card until you can naturalize as a U.S. citizen.

Can I change employers after my green card is approved?

There are two things to consider: the contract with BDV and immigration best practices.

Contractually, you must satisfy the one-year work commitment through the EB-3 Unskilled program with BDV.

However, even if you have worked for one year, we advise that you should consider remaining employed by your sponsor for at least another three months post-green card issuance. Remaining employed for at least three months after getting your green card can show to the U.S. government that you had the appropriate intent to work for the sponsor post-green card issuance. If you stop working for your sponsor immediately after getting your green card, this could raise red flags if you later want to become a naturalized U.S. citizen.