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 applying for an immigrant visa at a consular post abroad, when the person is residing outside the US. 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:
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:
There are waivers available for certain grounds listed above and an attorney should be consulted if an applicant feels that this may apply to him/her.
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.
There are two forms that must be filled in by each applicant and filed with the USCIS office that has jurisdiction over the place where the alien will reside. The forms are:
In addition to all the above, the following documents must also be submitted to the INS.
Authorization for Employment
An alien who has filed an application for adjustment of status may apply for employment authorization 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.
Traveling Abroad while Adjustment for Status is pending
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.
INS InfoLinks :
The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between Jethmalani & Nallaseth and the viewer.