ADJUSTMENT OF STATUS

Adjustment of Status refers to the procedure by which an alien can change his/her present status to that of a lawful permanent resident without having to leave the United States. This should be distinguished from the traditional method of gaining permanent residence, which involves applying for an immigrant visa at a consular post abroad. The provision for Adjustment of Status was created by Congress as a convenience to foreign nationals. Prior to this provision, individuals seeking permanent residency had to return to their country of origin and apply overseas at a U.S. Consulate and then re-enter the U.S. with an immigrant visa.

Pursuant to §245 of the Immigration and Nationality Act (INA), the status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, at his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:

1. the alien makes an application for such adjustment,

2. the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and

3. an immigrant visa is immediately available to him at the time his application is filed.

It is important to keep in mind that Adjustment of Status is the process one undergoes AFTER establishing eligibility for permanent residency. It is only available after a foreign national has demonstrated that he/she qualifies for permanent residency based on one of the permanent residency categories. This is usually through a family relationship or an employer/employee relationship. Thus, individuals who want to apply for a green card and mistakenly apply for this procedure without establishing eligibility will have their adjustment application denied. Understanding this critical difference will save a lot of aggravation and a significant amount of time.

To be eligible for Adjustment of Status, the applicant must meet certain requirements such as:

1. he/she must not have entered the country illegally. He/she must have been ‘admitted’ to the United States through a legal point of entry.

2. he/she must not have been admitted as a ‘crewman’, (either on board a vessel or aircraft), in transit through the U.S. from another country or as an ‘Exchange visitor’.

3. he/she must not have engaged in unauthorized employment while in the U.S.

4. he/she must be eligible for immigration, i.e. he/she must be the immediate relative of a U.S. citizen or of a lawful permanent resident of the U.S., or eligible under one of the categories of employment based immigration.

5. an immigrant visa must be immediately available to the alien, i.e. his/her priority date must be current.

6. the alien must be admissible to the U.S. as a permanent resident. There are nine major categories that can be found excludable. These are:

a) health-related grounds
b) criminal-related grounds
c) security-related grounds
d) public charge
e) labor certification
f) illegal entrants and immigration violators
g) documentation requirements
h) ineligible for citizenship

There are waivers available for certain grounds of the above and an attorney should be consulted if an applicant feels that this may apply to him/her.

Unauthorized Employment

Aliens who have engaged in unauthorized employment, who are not in lawful status at the time of filing of the adjustment application or who have failed to continuously maintain status since their entry into the United States, are barred from adjustment of status. These two violations are quite common and negative consequences may come up years later when applying for a Green Card. However, this statutory bar does not apply to immediate relatives of U.S. citizens or certain special immigrants.

Marriage during Pending Administrative or Judicial Proceedings

Any alien who marries on or after November 10, 1986, and while in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto, is barred from adjustment of status. The INA will also prohibit approval of a petition granting immediate relative or preference status based on the marriage until the alien has resided outside the United States for two years after the marriage. It is only after this foreign residence requirement has been met, that the restriction against adjustment will not apply. The INS regulations provide for lifting the restriction if the alien is found not deportable or excludable.

Aliens Who Have Conditional Residence
Those persons, who have been admitted for permanent residence status on a conditional basis, either as spouses whose marriages are less than two years old or as immigrant investors, are ineligible for adjustment of status.

Fiancé/es (K-1 Visas)

Aliens, who are admitted under the K-1 category for fiancé/es, may only be adjusted to permanent residence on a conditional basis, where the adjustment is a result of the K-1 holder’s marriage to the United States citizen who filed the original petition to classify him/her as a K-1.

Note: While aliens in some of the above categories were previously permitted to adjust their status pursuant to INA §245(i) despite their ineligibility (by paying a penalty fee), this is no longer available with effect from January 14, 1998.

APPLICATION

There are two forms that must be filled in by each applicant and filed with the INS office that has jurisdiction over the place where the alien will reside. The forms are:

1. Form I-485 – ‘Application for Permanent Residence’
2. Form G-325A – ‘Biographical Information Form’

If the applicant wants to apply for authorization to work in the U.S. while he/she is waiting for his/her visa interview, he/she must also file Form I-765 – ‘Request for Employment Authorization’, together with a fee of $ 70.00, along with the above two forms. (See Authorization for Employment)

In addition to all the above, the following documents must also be submitted to the INS.

1. Certified copy of his/her Birth Certificate.

If employed, letter from employer showing employment is of a permanent nature.
If not employed, an Affidavit of Support (Form I-864) from a responsible person in the U.S. confirming the credibility of the alien.
If application is being filed along with his/her spouse, Marriage Certificate and proof that all previous marriages of both parties have been legally ended.
Two color photographs taken within thirty days. The photographs must have a white background and the facial image must be about 1 inch from chin to the top of the hairline and should be in the ¾ frontal view with the right ear showing.
Applicants between the ages of 14 and 79 must pay a fee of $25/- for the fingerprint appointment.

A non-refundable fee of $120/-.

Authorization for Employment

An alien who has filed an application for adjustment of status may apply for employment authorization for periods not exceeding one year at a time during the period the application is pending (including any period when an administrative appeal or judicial review is pending.) This is an unrestricted employment authorization that permits the alien to work for any employer.

The INS normally takes the position that, after the application for adjustment of status is filed, the alien has immigrant intent and is no longer eligible for extensions or changes of nonimmigrant status. For this reason, it is advisable to obtain an unrestricted employment authorization.

INTERVIEW

At the time of filing the above forms and documents, the INS representative will set the date on which the applicant/s (if family has filed together) will have to appear for his/her/their interview with an INS Officer for the ‘Adjustment of Status’. This date may be anything between three to nine months from the filing date depending on the city.

Before this interview takes place, the applicant must have completed a medical examination by a physician appointed by the INS. A list of designated physicians is available from the local INS office. The results of the test will be given to the applicant in a sealed envelope, which he/she must hand over, unopened to the INS Officer at the time of the interview.

For the interview, the applicant must carry with him/her, the following:

1. Passport
2. I-94 Departure Record
3. Original documents of those copies that were submitted during the filing of the application
4. Unopened results of the medical examination
5. Recent letter of a job offer if the permanent resident application is employment-based
6. Appointment Notice

At the interview, the INS Officer will ask any pertinent questions and at the end, if he is satisfied that everything is in order, the application for permanent residence will be approved.

Usually, adjustment of status will be granted where the alien is statutorily eligible and there are no ‘negative factors’. When such negative factors exist, these will be weighed to determine whether adjustment will be granted. Close family relatives, particularly immediate relatives, may be a strong positive factor favoring adjustment.

On the other hand, preconceived intent to remain in the U.S. at the time of entry as a nonimmigrant, even though not resulting in fraud or willful misrepresentation, may be a sufficient negative factor to deny adjustment of status. However, immediate relatives of U.S. citizens can overcome such negative factors.

It is important to note that adjustment of status is considered discretionary. The INS may still deny an application for adjustment of status even where none of the statutory bars apply. There is no guarantee that the INS will approve the application. If this happens, the foreign national should keep in mind that he/she would have to obtain an immigrant visa through a U.S. Consulate in his/her original country.

Traveling Abroad while Adjustment for Status is pending

Pursuant to 8 CFR §245.2(a)(4)(ii), an application for adjustment of status is considered abandoned if the alien leaves the United States while the application is pending. In that case, the foreign national will likely have to apply for an immigrant visa overseas and wait for processing of the permanent residency application while outside of the U.S. If, a person is waiting for adjustment of his/her status, and needs to travel out of the United States for any reason, he/she must apply for permission prior to departing the United States to ensure that his or her application is not deemed abandoned. This is known as Advance Parole and is available for any legitimate personal or business reason.

Notwithstanding the above, on June 1, 1999, the INS published an interim rule that allows H-1 and L-1 non-immigrants (and their dependents) to travel outside the United States without abandoning their applications for adjustment of status, making advance parole unnecessary for these aliens. The interim rule was published in 64 FR 29209.

Related Links:

- List Of Documents Required For The Adjustment Of Status Interview

- Use of New Adjustment of Status Forms

- How Do I Prevent My Child from Losing Benefits at Age 21 (‘Aging Out’)