Adjustment of Status

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.

• 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.

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.

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

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

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.