Reasons to Maintain Your Nonimmigrant Status as an Adjustment of Status Applicant

May 23, 2022
Chandni Shah

Many people who apply for a green card within the United States (called an application for “Adjustment of Status”) must be in lawful immigration status at the time they file their application. Although it is not necessary to maintain your lawful status once your application for Adjustment of Status is filed, there are several important reasons why our office recommends that you do maintain lawful status even after filing your green card application:

  • Maintain work authorization while Employment Authorization application is pending

Merely having a pending Adjustment of Status application does not automatically grant the applicant work authorization, and it can take several months to obtain work authorization based on your application for adjustment of status. If you already have work authorization (i.e. H-1B, OPT, etc.), but do not maintain status, you will be unable to lawfully work in the United States until you receive your Employment Authorization Document (EAD). By continuing to extend and maintain status until you receive your EAD, or better, your Green Card, you protect your ability to lawfully work in the United States.

  • Ability to travel out of the United States and return without Advance Parole

Adjustment of Status applicants can also file an Advance Parole application, which allows you to travel outside of the United States while the Adjustment of Status application is pending. This also takes several months to be approved. Certain types of nonimmigrant status, such as H-1B or H-4, may allow you to leave the United States while your application is pending. Please note that this is a particularly complicated issue, as many visas do not permit this.

  • Maintain lawful status and ability to remain in the United States if Adjustment of Status application is denied

Most importantly, in the event that your adjustment of status application is denied, you will no longer be in lawful status and will begin to accrue unlawful presence. This can have dire consequences and prevent you from changing or adjusting status in the future, returning to the United States if you travel out of country, and eventually obtaining United States citizenship.

  • Maintaining your nonimmigrant status allows your dependents to continue to maintain their underlying status as well

By maintaining your current nonimmigrant status, your dependents can also maintain their underlying status. This protects the entire family if the Adjustment of Status applications are denied and may allow you to remain in the United States legally or possibly travel internationally, even if your adjustment of status application is denied.

As you can see, there are many benefits to maintaining your status while you wait for your adjustment of status application to be adjudicated. However, please also note that the interplay between your current status and your green card application can be a complicated matter. If you have any questions at all about either your eligibility for a green card or what to do after your adjustment of status application is filed, do not hesitate to contact our office at (312) 427-6163.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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