Chapter 4 - Filing

A. Timing of Filing

Applicants who are applying for adjustment of status based on having been physically present in the United States for a continuous period of at least 3 years since the date of their lawful admission as a T-1 nonimmigrant may not file an Application to Register Permanent Residence or Adjust Status (Form I-485) until they have met the 3-year continuous physical presence requirement, but must file before the expiration of their T nonimmigrant status.^[1] USCIS rejects or denies any Form I-485 filed before the principal T nonimmigrant accrues 3 years in T nonimmigrant status.

Applicants who are applying for adjustment of status based on having been physically present in the United States for the duration of the investigation or prosecution of the acts of trafficking (if the duration is less than 3 years), may file Form I-485 any time after the Attorney General has determined that the investigation or prosecution is complete.

A derivative T nonimmigrant may not apply for adjustment of status before the principal T-1 nonimmigrant applicant has applied for adjustment of status. A derivative may only file concurrently with or after the principal has applied for adjustment of status.^[2] For ease of processing, derivative T nonimmigrants are encouraged, but not required, to file for adjustment of status concurrently with the principal T-1 nonimmigrant.

B. Extension of Nonimmigrant Status

Upon receipt of a properly filed^[3] Form I-485, USCIS issues a receipt notice (Notice of Action, Form I-797) that includes a notice of extension of the applicant’s T nonimmigrant status.

If USCIS rejects the application because it was not properly filed in accordance with the form instructions, USCIS sends the applicant a rejection notice, and the applicant’s status is not extended. USCIS does not send the applicant a receipt notice.

If the T nonimmigrant properly files the adjustment of status application while still in valid T nonimmigrant status, there is no need to file the Application to Extend/Change Nonimmigrant Status (Form I-539). If a T nonimmigrant does not file an adjustment of status application before their T nonimmigrant status expires, they must file the Form I-539 in order to extend their status.

C. Employment Authorization

Principal T-1 nonimmigrants who timely file a Form I-485 before their T-1 nonimmigrant status expires are authorized to work incident to status^[4] while their Form I-485 is pending.

USCIS issues a receipt notice (Form I-797) to applicants who properly file Form I-485, which includes notice of an extension of the applicant’s T nonimmigrant status. The Form I-797, Notice of Action, combined with the applicant’s Arrival/Departure Record (Form I-94) reflecting the grant of T-1 nonimmigrant status, is acceptable evidence of employment authorization for purposes of Employment Eligibility Verification (Form I-9).^[5]

Employment is authorized for 2 years from the expiration date of the applicant’s previous period of T nonimmigrant status reflected on Form I-94, or until the date the Form I-485 is denied or withdrawn, whichever is earlier.

T-1 nonimmigrants with a pending Form I-485 may also apply for an Employment Authorization Document (EAD) as evidence of their employment authorization by filing an Application for Employment Authorization (Form I-765). An applicant may file an application for an EAD concurrently with the adjustment of status application or separately. USCIS issues any EAD based on the pending adjustment application, including a renewal, under the (c)(9) eligibility code.

Although T-2, T-3, T-4, T-5, and T-6 derivative nonimmigrants who timely file a Form I-485 before their derivative T nonimmigrant status expires receive an extension of status while their Form I-485 remains pending, they must submit a Form I-765 to request employment authorization and obtain an EAD. Unlike the principal T-1 nonimmigrant, derivative family members are not employment authorized incident to status and therefore may not use their Form I-797 and Form I-94 as evidence for Form I-9 purposes to show employment authorization.^[6]

D. Travel

T nonimmigrants with a pending adjustment of status application who seek to travel outside the United States must obtain an advance parole document from USCIS before departure.^[7]

To request an advance parole document, the T nonimmigrant must file an Application for Travel Documents, Parole Documents, and Arrival/Departure Records (Form I-131) in accordance with the form instructions and obtain the advance parole document before departing the United States.^[8]

If an applicant fails to obtain an advance parole document before departure, USCIS deems the application for adjustment of status abandoned as of the moment of departure from the United States and denies the application. If the adjustment of status application is denied, the T nonimmigrant is treated as an applicant for admission upon their return.^[9] USCIS does not approve an adjustment of status application while a T nonimmigrant is outside the United States.

If a T nonimmigrant applying for adjustment of status is in removal, exclusion, or deportation proceedings, USCIS deems the application for adjustment of status abandoned as of the moment of the applicant’s departure from the United States.^[10]

Footnotes

[^ 1] See 8 CFR 245.23(a)(4). If an applicant has not accrued 3 years of continuous physical presence before the expiration of their T nonimmigrant status, they should file an Application to Extend/Change Nonimmigrant Status (Form I-539) so that they may continue to accrue physical presence before applying for adjustment of status.

[^ 2] See 8 CFR 245.23(b)(1).

[^ 3] See 8 CFR 103.2(a)(7). Form I-485 is properly filed if it contains a complete, properly executed form, with a valid signature and the required initial evidence, as directed by the form instructions.

[^ 4] See INA 214(o)(7)(C).

[^ 5] See Volume 10, Employment Authorization, Part A, Employment Authorization Policies and Procedures, Chapter 2, Eligibility Requirements, Section A, Authorized to Work for Any Employer Based on Status or Circumstances, Subsection 2, Aliens Who Do Not Need to Apply for Documentation of Employment Authorization [10 USCIS-PM A.2(A)(2)].

[^ 6] See Volume 10, Employment Authorization, Part A, Employment Authorization Policies and Procedures, Chapter 2, Eligibility Requirements, Section C, Aliens Required to Apply for Employment Authorization [10 USCIS-PM A.2(C)].

[^ 7] See 8 CFR 245.23(j) and 8 CFR 245.2(a)(4)(ii)(B).

[^ 8] See 8 CFR 245.23(j) and 8 CFR 245.2(a)(4)(ii)(B).

[^ 9] See 8 CFR 245.23(j)(3) and 8 CFR 245.2(a)(4)(ii)(B).

[^ 10] See 8 CFR 245.23(j)(3) and 8 CFR 245.2(a)(4)(ii)(A).