H-1B Visa Holders: Understanding Marriage Based Adjustment of Status Processing Delays

Introduction:

For H-1B visa holders aspiring to become permanent U.S. residents (Green Card holders) the Adjustment of Status (Form I-485) process is a critical step. Once you've married a U.S. citizen, you can generally apply for Adjustment of Status right away. There's no mandatory waiting period before filing the I-485 after marrying a U.S. citizen. You can start the process as soon as you're prepared and have the necessary documentation ready.

However, one of the most challenging aspects of this journey is navigating the often lengthy and unpredictable processing times. Understanding these delays and how to manage them effectively is essential for maintaining compliance and peace of mind.

Understanding Adjustment of Status Processing Times:

• Varied Timelines:

• Adjustment of Status processing times can vary significantly based on several factors, including the applicant’s location, the volume of applications at the processing center, and the specific details of the case. An H-1B applicant's location, for example, affects Adjustment of Status processing speeds due to varying caseloads and operational capacities of USCIS field offices. Offices in areas with higher immigrant populations often face longer backlogs, leading to slower processing times. Additionally, regional events and office-specific efficiencies can further influence the speed of case processing.

• The United States Citizenship and Immigration Services (USCIS) provides general processing time estimates on its website, which are updated regularly. However, these are guidelines rather than guarantees. It’s not uncommon for applicants to notice a disconnect between the estimates on the website and the processing timelines that they themselves experience. 

• Factors Affecting Delays:

• High application volumes and staffing challenges at USCIS can lead to extended processing times. The COVID-19 pandemic can be used as an example of a time when USCIS faced significant staffing challenges. The pandemic impacted USCIS operations in various ways, leading to office closures, reduced staffing, and subsequently, delays in processing immigration applications, including those for Adjustment of Status.

• Additional security checks or requests for further evidence (RFEs) can also prolong the process. An RFE, for example, is issued when USCIS needs more evidence or clarification to make an informed decision on an application. From the moment the RFE is issued, the clock stops on the case's processing time, and it does not resume until the applicant’s response is received and recorded by USCIS. This pause can significantly extend the overall processing time of the AoS application, underscoring the importance of providing a comprehensive and prompt response to any RFEs issued.

Strategies for H-1B Holders During Delays:

• Maintaining H-1B Status:

• While your Adjustment of Status application is pending, it's helpful to maintain your H-1B status. This includes complying with employment requirements and ensuring timely extensions if needed. This is especially true if your Adjustment of Status case is based on marriage. If your marriage is shaky, then you do not want to risk denial of the Adjustment of Status case and then being out of status because you didn’t maintain your H-1B status.

• Maintaining H-1B status provides a safety net in case of Adjustment of Status denial and allows for continued employment and travel flexibility due to the H-1B visa holder having dual-intent.

• Managing your H-1B Status and Employment:

  Many H-1B visa holders ask if they can continue working on their H-1B while the Adjustment of Status is pending. Many H-1B visa holders are concerned about their employment status during the Adjustment of Status process. They often inquire whether they can continue working under their H-1B status while the adjustment application is pending or if they need to obtain an Employment Authorization Document (EAD). Typically, H-1B visa holders can continue working under their H-1B status while their marriage-based Adjustment of Status application is pending, provided they meet certain criteria and if your H-1B is still valid and have filed for an Employment Authorization Document (EAD).

• Monitoring Application Status:

• Regularly check the status of your Adjustment of Status application online through the USCIS portal.

• Be responsive to any USCIS communications, including RFEs, to avoid further delays.

• Being in touch with your immigration attorney, especially if you are traveling outside of the U.S.

• Planning for Employment and Travel:

• If you need to change employers while your Adjustment of Status is pending, consult with an immigration attorney to understand the implications and ensure compliance with immigration regulations.

• Seeking Legal Advice:

• An immigration attorney can offer guidance on navigating processing delays, including exploring options for expediting your case in certain circumstances.

• Preparation for Adjustment Interviews:

• Use the waiting period to prepare for your Adjustment of Status interview. This includes gathering and organizing all necessary documentation and rehearsing potential interview questions.

Dealing with Uncertainties:

• Emotional and Mental Well-being:

• Processing delays can be stressful. It’s important to find support systems, whether through community groups, counseling, or staying connected with family and friends.

• Staying Informed:

• Keep abreast of any changes in immigration policies that might affect your application. USCIS often updates its policies and procedures, and staying informed can help you adjust your expectations and plans.

Conclusion:

Adjustment of Status processing times for H-1B visa holders can be lengthy and filled with uncertainties. By maintaining your legal status, staying informed, and preparing thoroughly for each stage of the process, you can navigate these delays more effectively. Remember, patience and proactive planning are key to successfully managing this phase of your immigration journey. For personalized advice or assistance with your Adjustment of Status application, don't hesitate to reach out to an experienced immigration attorney.

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Comparative Case Study of USCIS Processing Times for AOS Applicants from H-1B Status

Case 1: Complex AOS Application from H-1B

Background: Raj, an H-1B visa holder, is applying for Adjustment of Status (AOS). He has a multifaceted background that includes working for multiple employers and a gap in employment.

Complexities:

1. Multiple Employers and Job Changes: Raj’s H-1B status involved working for several employers, which required extensive documentation to ensure compliance with H-1B regulations.

2. Employment Gap: There was a brief period of unemployment, which needed legal clarification to maintain H-1B status compliance.

3. Previous RFEs (Requests for Evidence): Raj received RFEs during his H-1B renewals, indicating a need for more in-depth scrutiny.

Processing Time: Raj's AOS application faced delays due to these complexities, taking approximately 20-26 months for processing.

Case 2: Simple AOS Application from H-1B

Background: Emily, an H-1B visa holder working in a specialized technology sector, applies for AOS. She has a stable employment history with a reputable company.

Simplicity:

1. Stable Employment: Emily's long-term, uninterrupted employment with a single employer simplified the verification process.

2. Specialized Occupation: Working in a high-demand technology field with a shortage of U.S. workers likely streamlined her AOS application.

3. Clear Immigration History: Emily had no prior immigration issues, visa denials, or legal complications, making her case straightforward.

Processing Time: Emily's AOS application was processed within a typical timeframe of 12-16 months, reflecting a more straightforward case.

This comparative case study illustrates the impact of employment history and compliance with H-1B visa regulations on AOS processing times. Complex cases involving multiple employers, employment gaps, or previous RFEs tend to experience longer processing times due to the additional scrutiny required. In contrast, applicants with stable, long-term employment in specialized fields and a clear immigration record generally encounter more standard processing durations. Each individual’s employment and immigration history plays a crucial role in determining the complexity and processing time of their AOS application.

Should you or your loved one have any questions or need representation, please do not hesitate to call us, email us at info@khunkhunlaw.com, or review other options to get in touch with us for an immigration consultation. We have represented many clients going through the family-based immigration process with successful results even with the most difficult set of facts.