Adjustment of Status

Adjustment of Status

An “adjustment of status” (AOS) refers to the process by which an alien physically in the United States files a petition with U.S. Citizenship and Immigration Services (USCIS) to adjust his or her status from nonimmigrant to immigrant, i.e. permanent resident status. Being eligible to adjust status can be thought of as the difference between an alien successfully becoming a green card holder—or not.

Eligibility

To establish basic eligibility for an AOS, an applicant must meet the requirements described below, which are enumerated in Section 245 of the Immigration and Nationality Act (INA).

Physical presence in the United States
If an alien does not reside in the United States, she cannot adjust her status. Her alternative route to a green card is to undergo immigrant visa processing at a U.S. consulate or embassy in her country of nationality or country of foreign residence. This process is referred to as consular processing.
Approved underlying immigrant petition
This criterion applies only to the beneficiaries of a family-based immigration petition (i.e. a Form I-130 petition), with one exception: An alien who is the immediate relative of a U.S. citizen is permitted to file an AOS concurrently with the petition filed by the U.S. citizen on the alien relative’s behalf. For employment-based immigrant petitions, an I-485 application can be concurrently filed with the underlying Form I-140 petition, provided that a visa number is available to the prospective beneficiary at the time of filing.
Visa number availability
As stipulated by statute, immigrant visas are subject to numerical quotas on a yearly basis. The consequence of a limited supply of visas and demand exceeding supply has been a backlog in visa number availability. Aliens can submit an AOS petition only when the cut-off dates published every month in the U.S. Department of State’s (DOS) visa bulletin fall after their priority dates, or alternatively if their immigrant category is “current.”
Lawful admission to the United States
As noted above, an alien must physically reside in the U.S. in order to be eligible for an AOS. Prior to residing in the country, however, aliens must have been both inspected and lawfully admitted to the United States. The term “inspected” refers to an alien presenting himself to an immigration officer at a U.S. port of entry, while the term “lawfully admitted” refers to an immigration officer informing an inspected alien that she has been allowed to enter the country. In general, an alien’s I-94 will indicate lawful admission to the U.S. Aliens who did not enter the United States lawfully generally cannot apply for an adjustment of status.
Not becoming a public charge
According to USCIS, a “public charge” is an individual who “is likely to become primarily dependent on the government for subsistence, as demonstrated by the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.” Section 214(a)(4) of the INA stipulates that an alien who is currently or is likely “at any time” to become a public charge is inadmissible. Aliens who wish to adjust their status must therefore establish that they have the financial means of support themselves, or alternatively that their sponsoring relatives in a family-based petition have said ability.

No change in circumstances

A change in circumstances with respect to an alien’s underlying immigration petition—even circumstances outside the alien’s control—can render said alien ineligible to file for an AOS. For your reference, we highlight hypothetical, though not uncommon, changes in circumstances below.

Family-based changes in circumstances:

  • A U.S. citizen mother petitions for her unmarried 20-year-old son, an immediate relative not subject to visa quotas. However, before the AOS application is approved, the mother unfortunately dies. Her son thus no longer qualifies as an immediate relative of a U.S. citizen.
  • An elderly legal permanent resident father petitions for his alien child, but before the adjustment is approved, the father dies. As in the case above with the U.S. citizen petitioner, the end result is the same: the child no longer qualifies for an AOS.
  • A legal permanent resident father files an immigration petition for his 19-year-old alien daughter. After the visa petition is approved, but while the AOS application is still pending, the daughter gets married. Consequently, since she is no longer an unmarried child younger than 21 years old, the daughter no longer qualifies for adjustment.

Marriage-based changes in circumstances:

  • A U.S. citizen wife petitions for her alien husband as an immediate relative. However, before the AOS application is approved, the two divorce. The adjustment will thereafter be denied, and the now ex-husband will not be able to apply for an AOS based on his former U.S. citizen wife.
  • A U.S. citizen husband petitions for his alien wife as an immediate relative. However, before the adjustment is approved, they separate. The petition may ultimately be approved, but USCIS will scrutinize the couple’s separation in order to ascertain whether or not the marriage is valid or merely a “sham” marriage.
  • A U.S. citizen marries an alien. However, before he can file an immigration petition for his wife, he dies. The alien wife can actually still qualify as an immediate relative for adjustment of status if she and her deceased citizen husband had been married for at least two years and were not legally separated at the time of her husband’s death. The alien wife will have to file an immediate relative visa petition within two years of her husband’s date of death, and she must be unmarried at the time of filing.

Employment-based changes in circumstances:

  • An outstanding researcher is the beneficiary of an approved immigration petition under the EB-1B category. Before her adjustment petition is approved, however, her employer withdraws the research position offer. As a result, USCIS will deny the researcher’s AOS application; a job offer is required for an EB-1B.
  • An alien is awarded a National Interest Waiver (NIW) and later applies for an adjustment of status. However, after her NIW petition was approved, the alien decided she no longer wanted to work in her previous capacity and thereafter started a new job in an unrelated field. As a result, USCIS is prone to deny her AOS application, on the grounds that she is no longer working in the capacity that merited an NIW for her in the first place.
  • This is not so much a hypothetical as an important consideration: If an adjustment is based on an EB-1B (outstanding researcher) or any employment-based petition that requires an approved PERM labor certification, the alien beneficiary should work for the petitioning employer for 180 days after the I-485 has been filed. Otherwise, USCIS may deny the adjustment application.

Disqualifying Issues

It’s important to note that aliens who meet all of the above criteria are not automatically eligible to adjust status. For various reasons, aliens may be statutorily barred from adjustment. Statutory bars to adjustment include:

  • Unauthorized employment
  • Unlawful status
  • Failure to maintain status

Aliens who have engaged in unauthorized employment, or who were not in lawful status at the time they filed their AOS  applications, or who have failed to continuously maintain their status for even a single day since their entry in the United States are barred from adjusting status. As with many prohibitions, however, there are exceptions to the above. These include:

  • Immediate relatives (i.e. spouses, parents, and unmarried children under 21 years of age) of U.S. citizens are still eligible to adjust their status.
  • If a violation of status is a “technical violation” that occurred through no fault of an alien, said alien may still be able to adjust status. Examples of technical violations include:
    • An individual or organization’s failure to act on behalf of an alien where such inaction directly contributed to the violation of the alien’s legal status.
    • USCIS’s failure to act in a timely manner on an application properly filed by the alien.
    • The physical disability of an alien inhibited his timely request on legal status.
  • Employment-based immigrants who have been out of status no more than 180 days in the U.S. remain eligible to adjust.
  • The 245(i) exception is also available to qualifying aliens.

Other Special Circumstances

Aliens who are the beneficiaries of certain nonimmigrant visas must carefully consider their eligibility before adjusting status. We highlight several eligibility-related circumstances below.

Exchange visitors with J visas
J-1 or J-2 status holders are subject to a two-year foreign residence requirement, stipulating that they return to their home country or foreign country of residence and remain there for at least two years upon completion of their J status. If a former J-1 or J-2 holder has not satisfied this requirement, or alternatively has not been granted a waiver of this requirement, then said alien will be barred from adjusting status.
Fiancé(e)s with K visas 
Aliens admitted under the K-1 visa category for fiancé(e)s are eligible to petition for an AOS on a conditional basis, and only if the AOS stems from the K-1 holder’s marriage to the sponsoring U.S. citizen within 90 days of entering the country. If the alien marries a U.S. citizen other than the one who filed the K-1 petition, then said alien will be barred from adjusting status.
Aliens in removal proceedings who marry a U.S. citizen or permanent resident
The default rule in these instances is that if the marriage was not entered into in good faith, then the alien is not eligible for an AOS. On the flip side, if the alien can demonstrate, with clear and convincing evidence, that the marriage was legitimate—and not for the mere purpose of obtaining permanent resident status and avoiding deportation—then the alien will be eligible to adjust status.
Aliens who entered under visa waiver programs
Aliens who, as tourists or business visitors, were admitted through the Visa Waiver Pilot Program under Section 217 of the INA or through the Guam and Northern Mariana Islands Visa Waiver Program under Section 212 of the INA are barred from adjusting status. Note, however, that this bar does not apply to persons admitted under these programs who are seeking adjustments as spouses, unmarried minor children, or parents of U.S. citizens. Additionally, the 245(i) exception is available to those who qualify.
Crew members with D visas
Foreign national crew members who were serving on a vessel or aircraft at the time of their arrival to the U.S. are barred from adjusting status. Again, however, the 245(i) exception is available to those who qualify.
Transits without a visa
Aliens in transit without a visa, traveling through the U.S. to another country, are barred from adjusting status. Once again, though, the 245(i) exception is available to those who qualify.

Documentation List

For most, if not all, adjustment of status (AOS) cases, U.S. Citizenship and Immigration Services (USCIS) requires a basic set of documentary evidence. This documentation includes:

  • Two recent, identical color photos
  • Medical exam report, submitted with Form I-693 and supplement, which must be signed and sealed by a USCIS-certified physician
  • Evidence of financial support

For employment-based AOS petitions:

  1. Employment verification letter from sponsoring U.S. employer
  2. Form W-2s from the three years prior to filing
  3. Federal and state tax returns from the three years prior to filing
  4. Copy of most recent paystub

For family-based AOS petitions:

  1. Sponsors must submit evidence of financial ability in an affidavit of support, filed with Form I-864
  2. Copy of approval or receipt notice for the underlying immigration petition, if applicable (note that this documentation is not required when an AOS petition is filed concurrently with the immigration petition)
  3. Copy of passport(s) and visa(s)
  4. Copy of I-94
  5. Copy of I-797, I-20, IAP-66, if applicable
  6. Marriage certificate, if applicable
  7. Birth certificate

Benefits

Needless to say, the basic benefit of being eligible for an adjustment of status (AOS) is that you are on the cusp of receiving a green card. Once U.S. Citizenship and Immigration Services (USCIS) approves an AOS application, the alien beneficiary gains permanent resident status in the United States. But AOS applicants are permitted to enjoy additional benefits, too—and all while their Form I-485 petitions are pending. The three major benefits that redound to AOS applicants are advance parole, employment authorization, and legal stay.

Advance Parole 
When an alien submits her application for adjustment, she can simultaneously apply for advance parole. Approved advance parole allows an alien to travel freely abroad during AOS pendency without abandoning her application, without losing any of her AOS application-related benefits, and without having to first apply for and receive a nonimmigrant visa to re-enter the United States. For certain visa holders, i.e. individuals with H and L visas, obtaining advance parole is actually not required at all: H and L holders with pending I-485s can travel outside the U.S. without USCIS considering their AOS petitions abandoned.
Employment Authorization Document
Just as is the case for advance parole, prospective AOS beneficiaries can apply for an employment authorization document (EAD), which is more commonly referred to as a work permit. EADs allow aliens to work for any employer in the United States for as long as their I-485s are pending.
Legal Stay
Finally, aliens with pending AOS petitions are permitted to remain in the U.S. legally—i.e. without any other valid status—for as long as their adjustment applications are pending. Though allowing one’s former nonimmigrant status to lapse during AOS pendency is allowed, we nonetheless recommend applicants maintain their prior status while their AOS applications are pending. This is especially important for those applicants who did not retain an experienced immigration attorney and who are surprised and unprepared when their adjustment applications are ultimately denied.

How We Can Help You In Adjustment of Status

It is important that prospective permanent residents understand that each adjustment case varies as a function of an alien’s unique circumstances. As such, we emphatically recommend retaining an experienced immigration attorney. We work with consulates and clients all over the world and are knowledgeable about how to present the best possible case. We also help prepare our clients for interviews abroad. Knowing what to expect in an interview can help you feel more relaxed. It may also help you avoid common pitfalls that may cause delays in your processing time. You can always start this process by sending us your resume either by e-mail to law@railaw.com or by fax to +1 415-693-9135.

Our Adjustment of Status attorneys experience benefits you in several key areas. We:

  • Clarify options and potential scenarios surrounding your case.
  • Assist you in collecting the proper information and documentation.
  • Correctly classify the application and ensure requirements are met.
  • Prepare and submit all USCIS and Department of Labor (DOL) forms and documentation.
  • Communicate with the DOL and USCIS throughout the process.
  • Monitor the entire Adjustment of Status application process.

Adjustment of Status Attorney Experience & Responsiveness that Makes a Difference. Our Adjustment of Status Attorney Pledge:

  • 100% commitment to processing your Adjustment of Status file quickly & successfully.
  • Strong Adjustment of Status attorney experience & knowledge.
  • Open Adjustment of Status Attorney communication & responsiveness is among our top priority.
  • Highest level of Adjustment of Status Attorney service at an affordable FLAT rate.
  • Some Adjustment of Status applications can be submitted in as little as 1-2 weeks.
  • To discuss your case call: (415)-693-9131 or Mail Us.
Something very important you may want to know

Frequently Asked Questions

  1. 1
    What is the difference between an immigration petition and an adjustment of status?

    An immigration petition asks for a determination as to whether an alien applicant qualifies as an immigrant under a particular category and immigrant preference. For most classes of immigrants, the immigrant preference is important, since a limited number of aliens are allowed to become permanent residents under each category every year. An adjustment of status application, on the other hand, requests a change in an alien applicant’s status to that of an immigrant (i.e. permanent resident), and cannot be filed unless an immigrant visa is available. The two petitions are related in that an adjustment of status application is based on an approved immigration petition.

  2. 2
    What is the difference between consular processing and adjustment of status?

    Consular processing is the procedure that aliens outside the U.S. must go through to become permanent residents. Becoming a green card holder through an adjustment of status petition is an option only for aliens residing in the U.S.

  3. 3
    An immigration petition has just been approved for me, and I am currently residing in the U.S. Do I need to file an adjustment of status application?

    If you would like to become a permanent resident of the United States, then you will need to request an adjustment of status. While your approved immigration petition served to make the determination that you qualify as an immigrant under a particular category and preference, it is an approved adjustment of status petition that ultimately designates you as a permanent resident.

  4. 4
    What is concurrent filing?

    In the summer of 2002, USCIS’s predecessor agency, Immigration and Naturalization Service (INS), implemented a new rule allowing the filing of an I-485 and a Form I-140 petition at the same time, provided that a visa number is available to the beneficiary at the time of filing. Concurrent filing is typically associated with EB-1 and EB-2 beneficiaries.

  5. 5
    Where should I file my adjustment of status application?

    Where you file your AOS application depends on whether the underlying petition is employment-based or family-based, as well as your state of residence and whether or not you are requesting premium processing.

  6. 6
    I move around frequently, and so I am afraid USCIS will send something important to an address where I no longer live. Given my situation, what should I do?

    You should inform USCIS of your new address upon each move to ensure you receive all USCIS materials. (Informing USCIS of any and all address changes is actually required by law.) If you have retained an experienced immigration attorney to handle your case, your attorney will receive USCIS materials for you, or otherwise be notified when USCIS mails you something. Having an attorney take care of important mail is one of the many reasons AOS applicants hire a lawyer for their adjustment cases.

  7. 7
    How long will I have to wait for USCIS to adjudicate my adjustment of status?

    It depends on whether your adjustment application is employment-based or family-based, as well as your immigration category.

    For an employment-based case, your adjustment petition will be adjudicated by a USCIS officer at a service center that handles applications from the state in which you currently live. Employment-based adjustments can take anywhere from six months to two years (or more) to be approved.
    For a family-based case, your adjustment petition will be adjudicated by a USCIS officer at a local office with jurisdiction over your place of residence. Family-based adjustments can take as long as three or four years to be approved by some USCIS offices.

  8. 8
    Am I permitted to legally work while my adjustment application is pending?

    Yes, but only if you are in a nonimmigrant status that allows employment or otherwise if you have received an employment authorization document (EAD), which is more often referred to as a work permit. One of the benefits of being eligible to apply for an adjustment of status is that AOS applicants can apply for an EAD at the same time they file their I-485s, or alternatively at any point during an AOS petition’s pendency. Once their EADs are approved, individuals with pending adjustment applications are able to work for as long as their adjustments remain pending.

  9. 9
    Can I leave the country while my adjustment is pending?d

    Yes, but generally only if you have received advance parole, which is commonly referred to as a travel document. One of the benefits of being eligible to apply for an adjustment of status is that AOS applicants can apply for advance parole at the same time they file their I-485s, or alternatively at any point during an AOS petition’s pendency. Once their travel documents are approved, individuals with pending adjustment applications are able to travel to and from the U.S. for as long as their adjustments remain pending.

    Note that leaving the country while your I-485 petition is pending can result in USCIS determining that you have abandoned your AOS application (unless you currently have a status like H status or L status).

  10. 10
    Does the person who signs an affidavit of support for me have to be a U.S. citizen or permanent resident?

    It depends on whether your underlying petition is employment-based or family-based. For an employment-based adjustment, the person who signs an I-864, if required, does not have to be a U.S. citizen or permanent resident. However, for a family-based adjustment, the person who signs an I-864 must be a U.S. citizen or permanent resident.

  11. 11
    I was arrested for driving while intoxicated (DWI) several years ago. I did not fight the charge, and so it is now a conviction on my record. Will the conviction prevent me from getting a green card now?

    It depends on whether your underlying petition is employment-based or family-based. For an employment-based adjustment, the person who signs an I-864, if required, does not have to be a U.S. citizen or permanent resident. However, for a family-based adjustment, the person who signs an I-864 must be a U.S. citizen or permanent resident.

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