Many U.S. companies, academic institutions, research facilities, and other entities are actively seeking employees with certain professional skills. A number of Ukrainians who arrived in the United States through the Uniting for Ukraine (U4U) program possess these skills. Unsurprisingly, both prospective employers and potential workers are asking, “Can humanitarian parolees who entered the U.S. on U4U and similar parole programs apply for an employment-based green card?”
This article provides an overview of Adjustment of Status to Permanent Residence through employment-based immigrant visas and discusses the legal requirements for prospective employee applicants.
What Is Adjustment of Status?
“Adjustment of Status” is the process by which a noncitizen who is already in the United States can apply for lawful permanent resident status (a Green Card) without having to leave the country. Section 245(a) of the Immigration and Nationality Act (INA) authorizes the Secretary of Homeland Security to adjust the status of the beneficiary of an approved immigrant visa petition to that of a Lawful Permanent Resident (LPR). Congress created the adjustment of status process to ensure that eligible noncitizens who were physically present in the United States could become LPRs without having to travel and apply for immigrant visas abroad.
U.S. Citizenship and Immigration Services (USCIS) has authority to adjudicate visa petitions and Adjustment of Status applications. However, if a noncitizen is placed in formal removal proceedings, a judge from the Department of Justice’s Executive Office for Immigration Review (EOIR) generally has authority to review the Adjustment of Status application.
Is an “Adjustment of Status” the same thing as a “Change of Status”?
No. “Adjustment of Status” refers to the process of applying for a Green Card (lawful permanent residence) while already in the United States. This can be done through family-based immigrant visas, employment-based immigrant visas, diversity visas, asylum, or other humanitarian avenues.
In contrast, a “Change of Status” refers to an application from one type of nonimmigrant (i.e. temporary) status to another type of nonimmigrant status while remaining in the United States. A “Change of Status” is only available to applicants who entered the U.S. on some type of nonimmigrant visa (ex. student, visitor, temporary worker, etc.) and would like to acquire a different type of nonimmigrant visa.
Since individuals who entered the U.S. on humanitarian parole did not enter on a nonimmigrant visa, they are not eligible to apply for a Change of Status while they are in the U.S. on humanitarian parole.
What Is the Process for Adjustment of Status through an Employment-Based Immigrant Visa?
To apply for an Adjustment of Status based on an Employment-Based Immigrant Visa, an approved employer must first file an immigrant petition on your behalf as your sponsor. For employment-based petitions, the sponsor needs to file Form I-140, Immigrant Petition for Alien Worker, to petition for a foreign national to work in the United States permanently. For some categories of visas, the employer will first need to obtain labor certification approval from the Department of Labor.
Noncitizens may self-petition for certain employment-based immigrant visas under the EB-1 Extraordinary Ability and EB-2 National Interest Waiver (NIW) categories without needing an employer to sponsor them.
If USCIS approves the petitioner’s Form I-140, then the beneficiary (i.e. the noncitizen worker on whose behalf the petition was filed) needs to wait for the priority date to become current for their type of employment-based visa. This means that a visa number needs to become available for their EB-1, EB-2, EB-3, EB4, or EB5 visa. For some employment-based visa categories, it could take years for the priority date to become current.
Once the beneficiary’s priority date is current, they can file Form I-485, Application to Register Permanent Residence or Adjust Status to apply for Lawful Permanent Resident (LPR) status (a Green Card).
What Are the Eligibility Requirements for Employment-Based Adjustment of Status?
Section 245(a) of the INA requires applicants for Adjustment of Status to be physically present in the United States at the time they file Form I-485, Application to Register Permanent Residence or Adjust Status.
Applicants for employment-based adjustment must have an approved Form I-140, Immigrant Petition for Alien Worker, which demonstrates they are eligible for an employment-based green card.
Section 245(a) of the INA requires that an immigrant visa be immediately available to applicants at the time they file Form I-485.
Section 212 of the INA requires applicants to be admissible to the United States for lawful permanent residence, meaning they are not subject to any grounds of inadmissibility. Or, they must be eligible for a waiver of inadmissibility or other form of relief.
Sections 245(c)(2) and (c)(8) of the INA bars applicants for adjustment if they worked unlawfully (i.e. without a work permit or in violation of their immigration status), especially if their unauthorized employment was more than 180 days. This includes accepting or continuing unauthorized employment before filing Form I-485, or, engaging in unauthorized employment before or after filing Form I-485. The USCIS Policy Manual states that this bar extends to applicants not only after their most recent entry but during any previous stays in the United States.
However, certain employment-based adjustment applicants (adjusting through EB-1, EB-2, EB-3, and religious worker categories) may be eligible for an exemption from this unauthorized employment bar under Section 245(k) of the INA. An exception may also apply if the applicant was lawfully admitted to the U.S., has not engaged in unauthorized employment for more than 180 days in aggregate since their last lawful admission, and has not otherwise violated the terms of their status for more than 180 days.
Requirement to Maintain a “Lawful Nonimmigrant Status”
Section 245(c)(7) of the INA also requires that applicants adjusting through an employment-based immigrant visa who were admitted without a visa must be in “lawful nonimmigrant status.” This includes individuals who entered on humanitarian parole through U4U and similar parole programs.
What is considered “lawful nonimmigrant status”?
Section 214(a)(1) of the INA provides that “The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe.”
The Department of Homeland Security (DHS) defines “nonimmigrants” as “foreign nationals granted temporary admission into the United States.” Section 101(a)(15) of the INA defines the official nonimmigrant classes of admission while DHS explains that “The major purposes for which nonimmigrant admission may be authorized include temporary visits for business or pleasure, academic or vocational study, temporary employment, or to act as a representative of a foreign government or international organization.”
USCIS has determined that “a parolee is not a lawful nonimmigrant status.” Although parolees are “otherwise authorized to be physically present in the United States,” USCIS states in its Policy Manual that “lawful nonimmigrant status does not include parolees, asylees, or certain other aliens.”
Requirement to Be “Present in the United States Pursuant to A Lawful Admission”
In general, Section 245(a) of the INA provides that applicants for Adjustment of Status must be present in the United States after being “inspected and admitted” or “inspected and paroled” by an immigration officer. However, applicants for Adjustment of Status based on an employment-based immigrant visa are subject to additional requirements:
Section 245(k)(1) of the INA requires employment-based adjustment applicants to be “present in the United States pursuant to a lawful admission.” What is considered a “lawful admission”?
Sections 101(a)(13)(A) and (B) of the INA state “The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer. An alien who is paroled under section 1182(d)(5) of this title … shall not be considered to have been admitted.”
Section 212(d)(5)(A) of the INA states “The Attorney General may … in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien.”
Title 8 of the Code of Federal Regulations (CFR) goes on to explain in Section 1.2 that “An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act.”
For this reason, USCIS states in its Policy Manual that “Parole is not an admission to the United States. When an alien is paroled into the United States, the alien is still deemed to be an applicant for admission.”
What if an applicant for employment-based adjustment has entered the United States on more than one occasion with different types of entry? USCIS states in its Policy Manual that “only most recent admission prior to filing for adjustment” is considered. Hence, individuals who entered on humanitarian parole and have not left or re-entered the U.S. through a “lawful admission” will not be considered lawfully admitted for employment-based adjustment purposes.
USCIS illustrates this point by providing an example of an individual who held and previously entered on a visitor visa but later re-entered the United States on humanitarian parole: “In this case, even though the applicant had previously been a B-2 nonimmigrant, the applicant was a parolee at the time of filing for adjustment of status. Therefore, INA 245(c)(7) bars the applicant from adjustment of status as the beneficiary of an employment-based petition.”
Can U4U Humanitarian Parolees Apply for Employment-Based Adjustment of Status?
USCIS guidance indicates that individuals with humanitarian parole do not meet the legal requirement for “lawful nonimmigrant status.” USCIS states in its Policy Manual that “Any employment-based adjustment applicant who is not in a lawful nonimmigrant status at the time of filing for adjustment is barred from adjusting status, even if the applicant is lawfully present in the United States. For example, a parolee is barred from seeking employment-based adjustment, because a parolee is not a lawful nonimmigrant status.”
USCIS guidance also indicates that individuals who entered on humanitarian parole do not meet the legal requirement for “a lawful admission.” USCIS states in its Policy Manual that “an adjustment applicant who entered the United States on parole is not ‘lawfully admitted’ because parole is not an admission.”
Thus, USCIS has determined that parolees are not eligible for employment-based adjustment of status, since parole is insufficient both as an admission and as a status for purposes of employment-based adjustment.
Although it may be possible to file an application, USCIS may deny it based on its stated interpretation of the statutes governing employment-based adjustment.
What Are the Risks for Parolees Who Apply for Employment-Based Adjustment of Status?
As a practical matter, the wait time for an approved I-140 petition, an available employment-based immigrant visa, and the processing time for the subsequent Form I-485, Application to Register Permanent Residence or Adjust Status, may preclude adjustment of status if applicants are unable to maintain a lawful status while their applications are pending. If their parole status expires or is terminated while they await an approved I-140 petition or an available employment-based visa, they may be ineligible to apply for adjustment of status unless they can stay in the U.S. on another valid status. In that situation, it may be possible to depart the U.S. and continue their Green Card application through a U.S. consulate abroad.
Even if parolees are successful in obtaining a Green Card through an employment-based visa, it is important to keep in mind that an approved Green Card does not necessarily lead to U.S. citizenship in the future. Although Lawful Permanent Residents (LPRs) are theoretically allowed to remain in the U.S. indefinitely (except individuals with Conditional Permanent Resident Status), LPRs do not enjoy the rights and benefits of full citizenship until they apply for naturalization and become naturalized citizens.
Moreover, they could be in danger of having their green card rescinded if USCIS determines that they were not eligible to obtain a Green Card at the time their adjustment application was approved if they would not have been eligible for a Green Card under any other provision of law. Individuals whose lawful permanent residence is rescinded may be placed in removal proceedings. Criminal convictions, fraud, or prolonged absence from the United States could also lead to revocation of their lawful permanent residence.
Those Green Card holders who pursue naturalization could face other risks. The naturalization process is not always successful, since USCIS can deny naturalization for a number of reasons. Among the reasons for denying an applicant’s naturalization is failure to “show that they have been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of the INA in effect at the time of admission or adjustment.”
USCIS states in its Policy Manual, “In order for the applicant to establish that he or she was lawfully admitted for permanent residence, the applicant must have met all the requirements for admission as an immigrant for adjustment of status. An applicant is not lawfully admitted for permanent residence in accordance with all applicable provisions of the INA if his or her LPR status was obtained by fraud, willful misrepresentation, or if the admission was otherwise not in compliance with the law. Any such applicant is ineligible for naturalization in accordance with INA 318.”
Thus, it is important for parolees to understand the short-term and long-term risks of applying for employment-based adjustment of status.
Can Humanitarian Parolees with TPS Apply for Employment-Based Adjustment of Status?
Temporary Protected Status (TPS) is a temporary immigration protection provided to nationals of certain countries who cannot return to home due to an ongoing armed conflict, environmental disaster, or other dangerous conditions defined by the U.S. State Department. Individuals who are granted TPS are protected from being removed from the United States on the basis of status alone.
Section 244(f)(4) of the INA provides that, for purposes of adjustment of status, a TPS holder “shall be considered as being in, and maintaining, lawful status as a nonimmigrant” during the period in which the individual has TPS. However, USCIS guidance on TPS states that “TPS is nothing more than “a temporary benefit that does not lead to lawful permanent resident status or give any other immigration status.”
Since obtaining TPS does not change the manner in which a person entered the United States, individuals who entered on humanitarian parole still fail to meet the legal requirement for “a lawful admission.” The Supreme Court’s 2021 case, Sanchez v. Mayorkas, established that obtaining status through TPS is not enough on its own to establish that an individual has been lawfully admitted for purposes of employment-based adjustment of status.
The Supreme Court wrote in the Sanchez case, “Although under INA § 244(f)(4), a TPS recipient is considered to have lawful nonimmigrant ‘status,’ that provision does not enable a TPS recipient to meet INA § 245’s separate requirement of being ‘admitted’ because lawful status and admission ‘are distinct concepts in immigration law.’ While lawful status may be conferred upon entry into the United States or sometime after entry, an admission requires a physical entry after inspection and authorization by an immigration officer. Thus, ‘because a grant of TPS does not come with a ticket of admission, it does not eliminate the disqualifying effect of an unlawful entry.”
In a 2022 agency memorandum, USCIS interpreted the Sanchez holding to mean that simply holding TPS status does not overcome the admission hurdle necessary for employment-based adjustment of status.
In contrast, USCIS determined in the same memo that the “authorized re-entry of TPS recipients” back into TPS status does result in an “admission.”
What constitutes authorized re-entry? If a TPS recipient is issued Form I-512T, Authorization for Travel by a Noncitizen to the United States, this serves as evidence of DHS’s prior consent to their travel outside of the U.S. Upon returning from their travel abroad, individuals with a valid Form I-512T will be properly “inspected and admitted” into TPS status. This is the case even if the individual initial entered on humanitarian parole but was later granted TPS and traveled with the TPS travel document. In fact, USCIS states that humanitarian parolees who also hold TPS and travel with Form I-512T (rather than Form I-512L, Advance Parole Travel) will automatically terminate their parole status upon leaving the U.S. and will be admitted solely on TPS status upon their return.
Thus, while USCIS considers TPS to be a lawful nonimmigrant status, USCIS only recognizes TPS recipients who return on TPS-authorized travel with Form I-512T to be “inspected and admitted” at a port of entry for purposes of adjustment of status. This category of TPS recipients could potentially be eligible to apply for employment-based adjustment of status upon returning to the United States, provided they are able to satisfy all of the other legal criteria required for employment-based adjustment.
How Else Can Ukrainians Apply for Employment-Based Permanent Residence?
The alternative to Adjustment of Status from inside the United States is consular processing from outside of the United States. This method allows noncitizens to apply for an immigrant visa to a U.S. consulate in the country where they are residing and wait for it to be approved. If a sponsoring employer’s or self petitioner’s I-140 petition is approved, USCIS will send the approved petition to the Department of State’s National Visa Center, where the petition will remain until an immigrant visa number is available for the visa applicant. Once a visa is available or their priority date is current, the consular office will schedule an interview and process the case to decide if the applicant is eligible for an immigrant visa.
If the applicant is granted an immigrant visa, the consular officer will finish processing them and provide them with a “Visa Packet” to give to U.S. Customs and Border Protection (CBP) when they travel to the United States. If the CBP officer admits the visa holder, they will be admitted as a Lawful Permanent Resident and will later receive their Green Card by mail.
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