Adjustment of Status with Approved PERM & I-140

Green Card Process after PERM and I-140

Adjustment of Status (AOS) is a key milestone in the employment-based immigration journey. For individuals already living in the United States on work visas such as H-1B, L-1, or O-1, AOS offers a direct pathway to permanent residency without needing to return to the home country for visa processing. This article focuses specifically on the AOS stage after securing an approved PERM Labor Certification and Form I-140 Immigrant Petition, two critical prerequisites for employment-based green card applications.

Understanding this phase is essential for both applicants and sponsoring employers. Timely and accurate filing can help avoid delays, denials, or disruptions in employment authorization.

What is Adjustment of Status (AOS) in the Employment-Based Context?

Adjustment of Status (AOS) is the process through which a foreign national already present in the United States transitions from a nonimmigrant visa holder to a lawful permanent resident (green card holder), without leaving the country. AOS is initiated through the filing of Form I-485, Application to Register Permanent Residence or Adjust Status, once certain prerequisites have been met.

In the context of employment-based immigration, AOS generally follows:

• An approved PERM Labor Certification (to demonstrate no qualified U.S. workers are available for the job), and
• An approved Form I-140, which an immigrant petition for a non-immigrant worker, confirming the foreign worker’s eligibility and the employer’s intent to sponsor.

Unlike consular processing, which requires the applicant to interview abroad at a U.S. embassy or consulate, AOS allows individuals to remain in the U.S. during the green card application process. This is particularly advantageous for maintaining continuous employment and avoiding international travel complications.

Form I-485 is the central application for AOS, but may be accompanied by optional forms for temporary work and travel authorization (e.g., Form I-765 and Form I-131). Approval of the I-485 results in the issuance of a green card and lawful permanent residence.

When can Adjustment of Status be filed after I-140 Approval?

Form I-485 can only be filed when the applicant’s priority date is current based on the U.S. Department of State Visa Bulletin for their employment-based category (EB-1, EB-2, EB-3, etc.) and country of chargeability.

Understanding Priority Dates and the Visa Bulletin

• The priority date is typically the date the PERM Labor Certification was filed. For petitions that do not require PERM (e.g., EB-1A, NIW), it is the date USCIS received the Form I-140.
• The Visa Bulletin, published monthly, indicates whether applicants in specific categories and countries are eligible to file Form I-485. There are two charts:
  • Final Action Dates: When USCIS may approve a green card.
  • Dates for Filing: When USCIS may accept Form I-485 (even if a green card can’t yet be issued).

USCIS announces monthly whether it will accept adjustment applications based on the Final Action Dates chart or the Dates for Filing chart.

Concurrent Filing (I-140 + I-485)

When the priority date is current, Form I-140 and Form I-485 can be filed together (called concurrent filing). This allows applicants to begin the green card process earlier and simultaneously apply for employment authorization (EAD) and advance parole (AP).

Key Takeaways

• Filing Form I-485 is only possible when the priority date is current.
• Check the Visa Bulletin monthly to determine eligibility to file.
• If eligible, consider concurrent filing to reduce overall wait time and secure interim benefits like EAD/AP.
• Applicants must also ensure they are physically present in the U.S. and have maintained valid nonimmigrant status to qualify for AOS.

How to Prepare and File Form I-485 After I-140 Approval

Form I-485 (Application to Register Permanent Residence or Adjust Status) is the formal request to obtain a green card from within the U.S. This step should only be taken once the priority date is current, and the applicant meets all admissibility requirements.

Step-by-Step Breakdown

1. Confirm Eligibility
2. Gather Required Supporting Documentation
3. Optional Forms to Consider Filing Simultaneously ( for example: Employment Authorization Document )
4. Filing and Submission
5. Next Steps After Filing
   • Receive Form I-797 (Notice of Action).
   • Attend a biometrics appointment for fingerprinting and background checks.
   • Respond to Requests for Evidence (RFEs) if issued by USCIS.

Important Considerations:

• Filing incomplete or inconsistent documentation is a leading cause of processing delays or denials.
• Applications filed without a valid immigration medical exam (Form I-693) may be held or delayed.
• Legal counsel is highly recommended to ensure compliance, admissibility, and eligibility alignment.

Concurrent Filing of I-140 and I-485: When Is It Allowed?

Concurrent filing refers to submitting Form I-140 (Immigrant Petition for a non-immigrant Worker) and Form I-485 (Adjustment of Status) at the same time. This approach can significantly reduce wait times—but only if specific conditions are met.

Key Eligibility Criteria for Concurrent Filing

• The applicant is physically present in the U.S. in valid nonimmigrant status.
• The immigrant visa category allows concurrent filing. This includes most EB-1, EB-2, and EB-3 cases (excluding certain Schedule A or special category workers).
• The priority date is current under the U.S. Department of State’s Visa Bulletin at the time of filing.

Advantages of Concurrent Filing

• Faster access to benefits: Applicants can file for a work permit (Form I-765) and advance parole (Form I-131) while Form I-485 is pending.
• Reduces total processing time by allowing USCIS to adjudicate both forms in tandem.
• Minimizes risk of status lapse if the applicant’s nonimmigrant status is set to expire.

Strategic Considerations

• Concurrent filing is not recommended if the priority date is likely to retrogress.
• Applicants whose job role or employer circumstances are in flux may benefit from separating the filings to maintain flexibility.
• Filing without strong supporting documentation may trigger a Request for Evidence (RFE) or denial.

When is Concurrent Filing NOT Permitted

• Priority date is not current at time of filing.
• Applicant is outside the United States (must pursue consular processing).
• The I-140 category does not support AOS filing (e.g., certain EB-4 or EB-5 categories with geographic or investor caps).

AC21 Portability and Changing Employers While I-485 is Pending

The American Competitiveness in the 21st Century Act (AC21) allows certain employment-based green card applicants to change jobs while their Form I-485 (Adjustment of Status) is pending—without restarting the entire green card process.

What is AC21 Portability?

AC21 job portability provisions enable applicants to retain the validity of their approved Form I-140 if:

• The I-485 has been pending for 180 days or more, and
• The new job offer is in the same or similar occupational classification as listed on the approved I-140.

This applies primarily to EB-1, EB-2, and EB-3 categories.

When can Applicants change Employers?

• After 180 days from the date USCIS receives the I-485.
• If the new position closely aligns with the role described in the original labor certification or I-140 petition.
• The new job may be with the same employer or a new employer, provided occupational similarity is maintained.

How is Occupational Similarity Evaluated?

• Job title and duties are compared using SOC (Standard Occupational Classification) codes.
• USCIS considers the totality of the circumstances, including wages, location, and responsibilities.
• A signed job offer letter from the new employer is generally required.

When Legal Guidance is Essential

• If the new job title differs significantly from the original.
• If the move occurs before the 180-day threshold.
• If the original employer withdraws the I-140 after the I-485 has been pending for fewer than 180 days.
• When applying AC21 in non-traditional fields or ambiguous job categories.

Benach Pitney Reilly Immigration provides detailed legal strategies to ensure job changes don’t jeopardize green card eligibility during the adjustment of status (AOS) process.

Common Pitfalls and How to Avoid Them

Adjustment of Status (AOS) based on an approved PERM and I-140 involves strict eligibility and procedural requirements. Even small errors or omissions can trigger delays, Requests for Evidence (RFEs), or denials. Understanding common pitfalls can help ensure a smoother process.

Frequent RFE Triggers

• Missing documentation: Failure to include key evidence such as the original PERM approval, I-140 notice, medical exam (Form I-693), or proof of lawful status can result in RFEs.
• Inconsistent job classification: USCIS may question whether the job listed in the I-485 matches the original PERM role, especially after job changes.
• Insufficient proof of ability to pay: Employers must demonstrate financial capacity to pay the offered wage from the priority date through I-485 adjudication.

Reasons for Denial

• Unauthorized employment or visa overstay: Unless exempted under Section 245(k), unauthorized work or unlawful presence can lead to denial.
• Premature or invalid job changes: Switching employers before the 180-day threshold under AC21 portability, or to a job outside the same/similar occupational classification, may disqualify the applicant.
• Failure to maintain lawful status: Gaps in legal status or non-immigrant status violations are scrutinized during AOS review.

How to Avoid These Pitfalls

• Submit a complete and well-documented AOS package.
• Maintain consistency in job titles, wages, and duties—especially if planning to change employers.
• Track priority dates and ensure compliance with current Visa Bulletin cutoffs.
• Notify USCIS promptly of any address changes or material updates.
• Consult legal counsel before making employment or immigration-related decisions during AOS processing.

Benach Pitney Reilly Immigration offers strategic support to help applicants navigate these risks, respond to RFEs effectively, and avoid costly missteps.

Adjustment of Status vs. Consular Processing: Which to Choose?

When pursuing permanent residence through an approved PERM and I-140, eligible applicants typically choose between two final processing pathways: Adjustment of Status (AOS) or Consular Processing (CP). Both lead to a green card but differ in location, procedure, and strategic implications.

Key Differences Between AOS and Consular Processing

Strategic Considerations

• AOS is preferred for applicants who are lawfully in the U.S., particularly those on H-1B, L-1, or similar work visas, as it allows continued employment and residence.
• Consular processing is suitable for applicants outside the U.S. or those facing status limitations or complex immigration histories.
• AOS offers portability benefits under AC21, making it appealing for workers planning to change employers mid-process.
• Consular processing avoids certain U.S.-based bureaucratic delays but introduces travel-related risk and logistical complexity.

Each pathway has advantages depending on the applicant’s location, immigration status, and timing. Consulting with legal counsel can clarify which option offers the best balance of speed, security, and long-term strategy.

Why Work with Benach Pitney Reilly Immigration?

Adjustment of status after PERM and I-140 approval can be one of the most complex stages of the employment-based green card process. It involves strategic decisions around timing, job continuity, priority dates, and documentation—all of which must align with evolving USCIS policies and visa bulletin movements.

Benach Pitney Reilly Immigration provides:

• Expert Guidance on Adjustment of Status
  Our attorneys offer in-depth knowledge of the procedural, regulatory, and practical nuances of filing Form I-485 based on an approved I-140 and PERM certification. Whether managing concurrent filing or sequencing the final stage, we ensure legal precision and compliance.
• Tailored Strategies for Complex Scenarios
  From concurrent filing assessments to AC21 job portability, porting priority dates, and navigating visa retrogression, our team builds customized legal strategies based on each applicant’s circumstances and employment goals.
• Employer-Aligned and Applicant-Focused Representation
  We work closely with employers, HR teams, and sponsored foreign professionals to reduce risk, prevent delays, and maintain compliance throughout the process. Our track record includes successful green card outcomes in both straightforward and high-risk cases.

Partnering with Benach Pitney Reilly Immigration means having an experienced legal team that anticipates challenges, communicates clearly, and delivers results throughout every step of adjustment of status.

Explore Our Other Related Services

Benach Pitney Reilly Immigration offers comprehensive legal support across the full lifecycle of employment-based green card processing. Explore the following services for detailed guidance on each phase of the process:

• Labor Certification (PERM): Learn how PERM establishes the foundation for employer-sponsored green card applications and what’s required for DOL approval.
• Adjustment of Status Guide: A comprehensive overview of eligibility, forms, timelines, and process nuances when applying for permanent residence from within the U.S.
• H-1B Visa: Key details for professionals in specialty occupations, including transition paths from H-1B to green card through AOS.
• National Interest Waivers (NIW): A strategic alternative to PERM for advanced-degree professionals and individuals whose work benefits the national interest.

Ready to File Your Green Card Application?

Adjustment of status following PERM and I-140 approval is a pivotal step in the employment-based green card process. This stage often involves strategic considerations—such as concurrent filing, job portability under AC21, and timing concerns related to visa retrogression.

Benach Pitney Reilly Immigration provides focused legal guidance to help ensure petitions are accurately filed, timely, and supported by appropriate documentation. The firm works closely with sponsored professionals, HR teams, and employers to reduce risk and maintain continuity throughout the process.

Schedule a consultation to receive tailored support and ensure each phase of your adjustment of status is handled with precision.