Simultaneous Residence and Adjustment Filing, Travel, Address Changes

I.N.S. issues new regulation, effective July 31, 2002, allowing the filing of employment-based permanent residence petitions concurrent to adjustment of status applications.

So what does that mean? It means that after Labor Certification the foreign worker and his/her family can file for work and travel authorization! It means that a foreign worker can start working in the U.S. weeks after having received the job offer, not months or years. It means that a visitor who finds a job during a vacation trip to the U.S. can be authorized to work for that employer before incurring in any unlawful presence time.

I.N.S. will allow any employment based petition with an immediately-available immigrant visa number (green card) to be filed concurrent to an adjustment of status application. This translates into a reduction of approximately 6 to 8 months in the time it takes for a foreign worker and his/her family to be authorized to work in the U.S. if no temporary employment visa is being sought. So, theoretically, we now could have the following scenario for employment-based permanent residence petitions based on Labor Certification:

A foreign carpenter arrives in Miami to visit family and vacation in South Florida. During the trip, he meets the owner of a carpentry shop who informs him they have been trying to find an experienced carpenter for months in the local market to no avail. The foreign carpenter likes the salary offered and decides it is a great opportunity. The U.S. company files a petition for certification of the job offer with the department of labor (labor certification). They attest to their unsuccessful efforts to find qualified american carpenters. The dept.of labor approves the petition on an expedited basis in 3 months. The foreign carpenter and his family are still in the U.S. on vacation.

The U.S. company files for permanent residence on behalf of the foreign carpenter with the I.N.S. Concurrently, the foreign carpenter and his family file applications to adjust their status from tourists to become permanent residents with the I.N.S. Employment authorization cards and social security numbers are issued in approximately 60 days to the foreign carpenter, his wife and his two adolescent kids. The older child, who's 19 and graduated from highschool back in his home country, is accepted in college at lower resident tuition rates. The family also obtains travel authorizations to go back to their home countries for 30 days to take care of their personal affairs (caution! see next article*). All get extensions on their driver licenses for 2 years, while I.N.S. reviews the petition.

Even better news is that I.N.S. will allow foreign workers with pending I-140 (employment-based permanent residence) petitions currently pending with I.N.S., to file their adjustment of status petitions (and also employment authorizations) now, without having to wait for the I-140 to be approved to proceed.
This is extremely great news for foreign workers and U.S. employers!

Travel Authorization*
Buyer beware - Travel Authorization can cause you great harm!

When a foreiner has an application for adjustment of status pending with the I.N.S., (application number I-485), be it family-based or employment-based, he/she is entitled to request a special permission to allow him/her to travel abroad and return to the U.S. without interference to his/her pending petition. However, there is one major, extremely important exception:

If the foreigner has accumulated over 180 days of unlawful presence in the U.S. before the date of filing of the I-485 form, either by overstaying their authorized stay in the U.S. or by having worked without authorization, by leaving the country, even with travel authorization issued bu I.N.S. they trigger a 3 to 10 year bar to obtaining any other future benefits from I.N.S. or a U.S. consulate - including any type of non-immigrant visa or permanent residence petition.

I.N.S. will issue travel authorization to any beneficiary of a pending I-485 petition who has a filing receipt and signs a document certifying they have never accrued over 180 days of unlawful status. As many foreigners do not understand exactly what this document states, many individuals will end up signing the letter not having understood its implications. The travel authorization is granted, the person travels, comes back, has no problems being let back into the country (because of the travel authorization) only to discover later that they can no longer become permanent residents.

This is very serious, and the only way to sometimes revert the consequences is when the person has a U.S. citizen immediate relative such as a spouse or child. In such case, the person will still have to obtain approval on a special waiver, called "waiver of grounds for inadmissibility" which will cancel the effects of the 3 and 10 year law bar. (3 years for unlawful presence over 180 days but under 365, 10 years for unlawful presence of over 365 days).

Therefore, before making any travel plans outside the country, check with a competent attorney. Just because you obtained travel authorization does not necessarily mean you can travel!

Change of Address
I.N.S. more proactive in enforcing mandatory change of address notification by foreigners

Foreigners have always been required by law to inform the I.N.S. of a new address within 10 days of moving, just like any U.S. citizen must inform the DMV of their new address within 10 days of moving. This requirement has never been fully enforced by I.N.S. in the past. More recently, however, I.N.S. is trying to update their database, thus publicizing the need to file the change of address forms more strongly. Legal residents or non-immigrants should file change of address forms, as it is a very simple and fast procedure, the form can be sent by mail, and there is no fee involved.

Foreigners are responsible for the consequences of not informing changes of address to the I.N.S. This would be especially harmful in defenses in deportation procedures or other immigration petitions.
Simply go to www.INS.gov and print out form AR-11 - Change of Address - if you have Acrobat Reader installed in your computer, you can even fill out the form and then print it. Sign and mail to the address listed on the form. We recommend using certified mail and keeping a copy for your records. That's it. We can also send you a free form if you contact us.

The key to everything regarding immigration issues is information. The more information from reliable sources you have, the better positioned you will be to make the right decisions regarding your options. Avoid heresay. Educate yourself. Participate in the decision process. Research. And always seek the advice of competent counsel before making any decisions.

The above is informational only. Do not take any decisions based on this text. Seek the advice of an attorney regarding your specific case.

by Robert A. Kravitz, Esq.

Law Offices of Kravitz & Guerra, P.A.

(305) 372-0222

Letters to Attorney@Kravitzlaw.com