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.