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.
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.
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.
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.
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.
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.
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.
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.
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:
v
List Of Documents Required For The Adjustment Of Status
Interview
v
Use of New Adjustment of Status Forms
v
How Do I Prevent My Child from Losing Benefits at Age 21
(‘Aging Out’)
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 The Law Offices of Cyrus S Nallaseth and
the viewer.