Adjustment of Status
The Immigration and Nationality Act (INA) permits an individual to adjust their immigration status while in the United States from nonimmigrant or parolee (temporary) to immigrant (permanent), if the individual was inspected and admitted or paroled into the United States and is able to meet all required qualifications for a green card (permanent residence) in a specific category.
"Over the course of the last 30 years, our office has adjusted the status of many thousands of new immigrants. Our adjustmetn of status lawyers can turn this complicated process into a smooth and effortless event.
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The common term for a change to permanent status is “adjustment of status.”
The INA provides an individual two primary paths to permanent resident status. Adjustment of status is the process by which an eligible individual already in the United States can get permanent resident status (a green card) without having to return to their home country to complete visa processing.
Consular processing is an alternate process for an individual outside the United States (or who is in the United States but is ineligible to adjust status) to obtain a visa abroad and enter the United States as a permanent resident) This pathway is referred to as “consular processing”
Statutory Bars to Adjustment of Status
The INA lists several categories of aliens to whom adjustment of status is not permitted. They are:
- Foreign National Crewmen - D Visa - Those who, at the time of arrival, were serving on board a vessel or aircraft or were destined to join a vessel or aircraft in the United States to serve in such as a crewmen are barred from adjustment of status.
- Transits Without Visas ("TWOV") - C Visa - Aliens who are in immediate and continuous transit through the United States to a foreign destination, in accordance with the terms of an agreement entered into between the transportation line and USCIS, are not eligible for adjustment of status.
- Aliens Who Entered Under Visa Waivers -An alien (other than an immediate relative) who was admitted as a nonimmigrant visitor without a visa under section 212(l) [visa waiver for B-1/B-2 admission to Guam] or section 217 [visa waiver program] is barred from adjustment of status. (there is currently a problem with these cases - Bradley vs Holder)
- Aliens Who Have Conditional Residence - Aliens who were admitted for permanent resident status on a conditional basis either as spouses whose marriages are less than 2 years old at the time of admission as conditional residents or as immigrant investors (entrepreneurs), are ineligible for adjustment of status. However, once conditional residence is terminated, the bar is lifted.
- K-1 Fiances -Aliens who are admitted on a temporary basis under the K-1 category for fiance may only be adjusted to permanent residence on a conditional basi, if they marry the K-1 sponsor who filed the petition
- Unauthorized Employment, Unlawful Status or Failure to Maintain Status - Aliens who have engaged in unauthorized employment, who are out of lawful status at the time of filing of the adjustment application or who have failed to continuously maintain status since they entered the United States are not permitted to adjustment of status. However, this does not apply to immediate relatives of United States citizens or certain special immigrants.
But some of these people may still be permitted to file adjustment. See Section 245(i) and I-601 waivers.
HOW TO FILE ADJUSTMENT OF STATUS
1. Decide what is your Basis to Immigrate
The first step in the adjustment of status process is to establish that you fit into a specific immigrant category. Most immigrants become qualified for a green card (permanent residence) through a petition filed on your behalf by a family member or employer. This includes a spouse. Others become permanent residents through refugee or asylum status, or through several other provisions of the law.
2. File the Immigrant Petition
When you know what category you believe best fits your situation, in most cases, you will need to have an immigrant petition filed on your behalf.
- Family Based
Family based categories require that a U.S. citizen or permanent resident relative file a Form I-130, Petition for Alien Relative, for you. For more information, see the “Family” section."
- Employment Based
Employment based categories most often require the intending U.S. employer to file a Form I-140, Petition for Alien Worker, for you. Entrepreneurs who intend to invest significant amounts of capital into a business venture in the United States may file Form I-526, Immigrant Petition by Alien Entrepreneur” on their own behalf. For more information.
- Special Classes of Immigrants
In some cases, certain immigrants may file a Form I-360, Petition for Amerasian, Widow(er), and Special Immigrant, or have one filed on their behalf. To learn more about who may file a special immigrant petition, see the “Special Immigrant section."
- Humanitarian Programs
Most humanitarian programs do not require an underlying petition, although individuals may need to meet additional requirements before they can adjust status. For more information, see the “Humanitarian” section"
Depending on the category you wish to adjust under, you may be eligible to have the petition filed simultaneously with your Form I-485, Application to Register Permanent Residence or Adjust Status. This is called “concurrent filing.” Immediate relatives of a U.S. citizen usually file concurrently. Also, other applicants who have a visa immediately available may be able to file concurrently. Some categories, however, require that you first establish your eligibility for the immigrant category by having an approved petition before you are allowed to file Form I-485, for these categories you will not be able to file concurrently.
For more information on concurrent filing, see the “ Concurrent Filing” section.
3. Check Visa Availability.
Unless you are an “Immediate Relative” you may not file your Form I-485 until a visa is available in your category. In other categories, if an immigrant visa is currently available to you, you may be able to apply for permanent residence status on Form I-485. See the “Preference System & Priority Dates” link for more information on if you have a visa immediately available to you.
4. File Form I-485, Application to Register Permanent Residency or Adjust Status
Regardless of whether a petition must be filed and approved prior to your filing Form I-485 orwhether it may be filed concurrently, you will need to apply for permanent residence on Form I-485 at the appropriate time.
There are a few categories, which may require a different form than Form I-485.
When filing Form I-485, you must carefully read the form instructions carefully and submit all required documentation and evidence for your specific category. Failure to do so may result in your application being delayed or even denied for failure to establish that you are eligible to adjust status.
5. Go to your Application Support Center appointment (fingerprints)-
After you file your application, you will be notified to appear at an Application Support Center for biometrics collection. This involves having your picture and signature taken and fingerprinting. With this information the USCIS conducts the required security checks.
6. You will receive a notice to go to your interview (if applicable)
You will be notified of the date, time, and location for an interview at a USCIS office to answer questions under oath or affirmation. regarding your application. You must attend all interviews when you receive a notice. In marriage cases, the spouse must also attend.
When you go to your interview, you (and the family member that filed the Form I-130 petition on your behalf, if applicable) must bring originals of all documentation submitted with this application including passports, official travel documents, and Form I-94 reven if they are expired.
Some applications do not require an interview. USCIS officials will review your case to decide if it meets one of the exceptions.
7. You will receive your final decision in the mail
After the paperwork has been reviewed, interviews conducted (if necessary), security checks completed, and other eligibility requirements examined; your case will be ready for a decision by USCIS. In all cases, you will be notified of the decision in writing.
Change of Address
You must advise USCIS of a change of address. To update your address, see the “Change of Address” section.