An R-1 religious worker approaching five-year limit on R-1 status may face difficult issue of maintaining lawful immigration status and employment authorization when pursuing permanent residence.
Consider a religious worker whose I-360 immigrant visa petition is approved. The worker’s priority date permits filing I-485 under Visa Bulletin’s Date of Filing chart , but the priority date is not yet current under the Final Action chart.
The worker has a year or less of remaining before reaching the five-year R-1 limit.
Should the religious worker file the adjustment of status application now, maintain R-1 status or wait until immigrant visa becomes available for final approval of the green card application or consider consular processing?
Understanding the difference between “eligibility to file for adjustment of status application” and eligibility to receive permanent residence” is necessary to making this decision.
Permanent Residence for Religious Workers
Religious workers may seek lawful permanent residence under EB-4 Special immigrant category.
A qualifying religious organization files the Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant on behalf of the religious worker.
Once the petition is approved, the worker may seek permanent residence either through adjustment of status in the United States or through consular processing abroad if the worker met the eligibility requirements. Worker’s spouse and unmarried children under 21 years of age may also seek permanent residence as derivative beneficiary. Child Status Protection Act rules may affect over age child’s eligibility.
Approval of Form I-360 does not automatically grant permanent residence or authorize an immediate green card application. Visa availability and the applicant’s eligibility for adjustment must also be considered.
R-1 Five-Year Rule
R-1 nonimmigrant visa is usually limited to five-years of physical presence in the United States before the religious worker must return to the foreign country. Time spent abroad may be recaptured towards this five-year limit.
Extension of status beyond the five-years is not available to an R-1 although a fresh 5-year R-1 period may be availed but it requires the religious worker to leave the U.S. and return with a new R-1 approval probably a new R-1 visa. This requires review of work and travel history so the foreign national may return without issue.
Now, because permanent residence for the religious worker category (EB-4) faces a long wait, many religious workers are approaching or had already completed five-years of their nonimmigrant stay in the United States.
This precarious situation demands religious workers plan ahead because of the Visa Bulletin backlog.
I-360 Approved Does Not Mean Green Card is Immediately Available
Religious workers are eligible to seek permanent residence under the EB-4 employment-based category. The process begins with employer filing the immigrant visa petition by filing Form I-360 with the United States Citizenship and Immigration Services.
Green card is not available when I-485 is filed
Once the petition is approved the foreign national must file the application to register permanent residence in Form I-485 or Adjustment of Status, if lawfully present in the United States or, if abroad, consular process the immigrant visa.
Visa Bulletin, Final Action Chart and Dates of Filing Chart
Employment-based applicants for adjustment or immigrant visa including EB-4 religious workers may not file the application until their priority date is reached in the Visa Bulletin for their category and county.
Visa Bulletin is a monthly publication of the Department of State. It shows two separate charts, for employment based categories and for the family based categories. Employment-based categories, including EB-4 religious workers, are subject to annual numerical limit.
The Final Action Chart and Dates for Filing Chart These charts show the cut off dates inviting applicants with priority date before the cut-off dates shown for their specific country and category.
Dates for Filing chart: It identifies when an applicant may begin the immigrant visa application process.
For applicants seeking adjustment of status in the United States, USCIS determines each month whether the Dates for Filing chart may be used for employment-based Form I-485 applications.
If USCIS authorizes that chart and the applicant’s priority date qualifies, an eligible religious worker may file Form I-485 even though a green card cannot yet be approved.
The dates shown on the filing chart are usually a few months/ a year in advance of the Dates of Final Action chart and allows for preparation and filing time.
Final Action chart: It shows when a visa is immediately available for issuance. The immigrant visa is issued to I-485 applicants with priority date earlier than the cut-off date shown on the Final Action Chart.
Generally, the applicant’s priority date must be earlier than the applicable Final Action Date, or the category must be current, before permanent residence can be granted.
For example, a religious worker may qualify to file Form I-485 under the Dates for Filing chart while remaining unable to receive a green card for several months or longer.
Filing an I-360 Immigrant visa petition or its approval does not mean a green card is approved or is immediately available. Also, filing the I-485 based on Dates of Filing chart does not mean a green card is immediately available to the religious worker.
For applicants seeking adjustment of status in the United States, USCIS determines each month whether the Dates of Filing chart may be used for employment-based Form I-485 applications.
USCIS accepts I-485 based on Dates for Filing Chart when it estimates the number of applicants seeking the immigrant visa is less than the number of available immigrant visa. However the agency can issue the green cards only when the priority date is reached under the final action chart. On the other hand, Consulates accept the immigrant visa applications for consular processing only based upon the Final Action Chart.
R-1 status and Filing under the Dates for Filing Chart
When a religious worker with an approved I-360 has a short period of R-1 legal stay remaining under the I-94, say less than a year, it is possible that he may exhaust his five-year R-1 term before the immigrant visa is available to him under the visa bulletin.
International Travel after Filing Adjustment
Having filed the adjustment of status, If the religious worker had to leave the United States at the end of five-years to obtain a new R-1 period of 5 years. Foreign national with pending adjustment application must have an advance parole before traveling abroad and it takes sometime before the advance parole may be obtained. Traveling without an advance parole would lead USCIS to treat the adjustment of status application as abandoned.
The employment-based categories are subject to numerical limitations and are usually backlogged. EB-4 category has a long wait before an immigrant visa can be issued and has a few years of wait upon approval of I-360.
Pending Adjustment Application does not mean Extension of R-1 Status
R-1 five-year expiration is the most serious concern to applicants with pending I-485.
When R-1 expired, the religious worker staying in the United States after having filed an I-485 is no longer continue to be work authorized. A pending I-485 does not mean the worker can continue to work and must request employment authorization along with the adjustment of status. The I-485 applicant is not a permanent resident and remains at the risk making him all the more dependent upon the continued viability of the adjustment application.
Need to maintain R-1 Status after Filing I-485
Maintaining R-1 nonimmigrant status while the adjust of status application is pending is the best way because it provides necessary protection.
An employment-based adjustment of status applicant must maintain lawful presence up until the adjustment application in I-485 is properly filed.
If the adjustment application is pending but the R-1 five-year period is exhausted, the foreign national may remain in the United States but may not perform prayer and other religious services and would need employment authorization document to resume employment.
This may adversely affect the operations of the religious institution employer and interrupt their religious services.
Maintaining R-1 status is not possible beyond five-year term.
Therefore planning for adjustment of status becomes important before the R-1 time runs out.
Immigration Strategies to Adopt
It is important to assess the options available in the light of risks. In such times it is also important to consider the following:
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- R-1 expiration and employment authorization
- Filing I-485 or wait for the final action date
- Filing I-765 under adjustment of status
- Timing of adjudication of I-765
- Visa Bulletin movement, and
- Consular processing.