Adjustment of Status

Common Questions Regarding Adjustment of Status

What Are the Requirements for Adjustment of Status?

The first requirement for adjustment of status is that the alien must be physically present in the United States. If the alien does not reside in the United States, he/she cannot adjust status in the U.S. and must go through immigrant visa processing at a U.S. consulate abroad instead. Adjustment of status is not necessary if the alien is abroad. The U.S. consular office will interview the alien when a family member sponsors the alien under family based petitions or an employer sponsors the alien under employment based petitions. A green card will be available within 3-4 weeks from the date of arrival.

If the alien is in the U.S, and the adjustment of status is based on an immigrant petition (I-130 or I-140), as a refugee or asylee (I-589), or a qualified Public Interest Parole (PIP) status, the application must have been approved. Unless the applicant is an immediate relative of a U.S. citizen, an I-130 petition under family based must be approved prior to submitting the I-485 application. If the I-130 is filed by an immediate relative, then an I-485 application may be filed concurrently. A refugee may file for adjustment one year after arrival. An asylee may file for adjustment of status one year after their I-589 petition was approved. For naturalization purposes, the date of adjustment for refugee is the date of entry into the U.S., and for asylee will be the date of approval for I-589. In addition, as of July 31, 2002, an I-485 adjustment of status application can be filed concurrently with I-140 employment-based immigrant petitions (EB-1, EB-2, EB-3) if a visa is currently available. If a visa is not immediately available, the applicant must wait until an I-140 is approved and a visa is available before an application for adjustment of status may be filed.

The second requirement, which is briefly discussed above, is that an immigrant visa must be immediately available to the alien. As stated, except for aliens who are immediate relatives of U.S. citizens, other aliens that are under non-immediate relative categories and employment based petitions are subject to the numerical annual quota for immigrant visas. For these aliens, they may only file their adjustment of status applications once the cut-off dates published monthly by the State Department pass their priority dates of their initial immigration petition. Please look at the Visa Bulletin for visa availability under each category.

The third requirement for adjustment of status is that the alien must not be an "unlawful alien" or "Entry Without Inspection," which is the term of art used to describe illegal aliens. To be adjusted, aliens must have been inspected and admitted into the U.S. The USCIS considers aliens to have been "inspected" when they present themselves to an immigration officer at a U.S. port of entry. Aliens are considered admitted when an officer informs them of such and they are allowed to enter the U.S. An issuance of an I-94 and/or the USCIS' Stamp in the aliens' passport are indications that the aliens have been admitted legally. There are certain exceptions to this rule. Under the LIFE Act of 2000, Section 245(i) of the Immigration and Naturalization Act, an alien who has an I-130 immigrant petition by a U.S. residence or U.S. citizen or a labor certification application filed by an employer on or prior to April 30, 2001 may apply for adjustment of status, provided that a visa is available at the time applied, by filing form I-485(A) and by paying a $1000.00 penalty to USCIS. Additionally, an unlawful alien that has an approved I-130 petition by an U.S. citizen or permanent resident who has been ordered to appear in immigration court for removal proceedings can apply for cancellation of removal under INA § 240A(b), 8 U.S.C. § 240A(b). This section allows certain undocumented or overstayed aliens to apply for cancellation of removal if certain qualifications are met. To learn more, please click to our article about cancellation of removal.

The fourth requirement for adjustment of status is that there must not be a change in circumstances in the applicant's qualification. That is, there must not be any change of circumstance from the date in which the I-130 and/or I-485 application is filed. A change in circumstances could detrimentally alter an alien's eligibility for adjustment of status. Following are some illustrations on how a change of circumstances may affect the alien's ability to adjust status to be a permanent resident.

• Examples 1: An I-130 petition for alien relative was filed by a U.S. citizen parent for an unmarried child under 21.
  • Scenario 1 – After the application was filed but prior to an approval of the I-130, the child turned 21. Thus, the child is "aged out." In this case, although there is a change of circumstances that could lead to a change of qualifications, under the Child Status Protection Act of 2002, a person that is "aged out," such as in this scenario, still qualifies as an immediate relative of the U.S. Citizen parent.
  • Scenario 2 - After the application was filed but prior to an approval of the I-130, the child married. In this case, there is a change of circumstance that results in a change of category. Because the child is now married, he/she no longer qualifies as an immediate relative of the U.S. Citizen parent. The child and his/her family now qualify under an immigrant petition third preference. A letter of notification of change of status must be filed with USCIS and include the child's spouse and his/her dependents. One positive note is that the child will retain the priority date in which the original I-130 was applied, saving a few months from the application process.
  • Scenario 3 - After the application was filed but prior to an approval of the I-130, the U.S. Citizen parent unfortunately passed away. Thus, the child no longer has any status to come to the U.S. The child lost his/her status as an immediate relative. If the father was a named petitioner, and he later passes away, the U.S citizen mother cannot "substitute" for the father. For this reason, our attorneys at Smith & Garg, LLC., often advise elderly clients to both apply for the same beneficiary. This is the only way to secure a priority date for the alien child if and when tragedy occurs.
• Example 2: An I-130 application was filed by a U.S. citizen husband for an alien spouse.
  • Scenario 1 – The spouse mentioned above is outside the U.S. After the petition was filed but prior to an issuance of an immigrant visa by the U.S. Consular Office, the couple got a divorce. In this case, the application will be denied because the spouse's status has changed. She no longer has any status to immigrate to the U.S.
  • Scenario 2 – The spouse mentioned above is outside the U.S. After the petition was filed but prior to an issuance of an immigrant visa by the U.S. Consular Office, the couple got separated (legally or not). In this case, the spouse may still have status to immigrate to the U.S. The key issue here is whether the marriage was entered in good faith. The Service and the Consular Officer will scrutinize the facts to determine if there is a bona fide (good-faith) marriage. If so, the spouse may still be granted an immigrant visa. This makes sense because there is always a chance that a couple will rekindle their relationship, so long as there is no legal divorce.
  • Scenario 3 – The alien spouse is in the United States. After the I-130 petition was filed but prior to an approval, the couple got divorced. In this case, again, the spouse no longer has status. This is due to the fact that, legally, she is no longer an immediate relative of the petitioning spouse.
  • Scenario 4 – The alien spouse is in the United States. After the I-130 petition was approved but prior to an approval of an I-485 application to adjust her status, the couple got divorced. Thus, the husband did not accompany the spouse to the interview for the I-485. The spouse may still be able to obtain permanent residency if she files a "Waiver." The waiver must show that it is not her fault that the husband could not accompany her to the interview. Here, what that means is that she must show that she was not at fault for the divorce. Again, the Service will scrutinize the facts to determine whether the I-130 petition and the I-485 application were fraudulent when filed. In addition, the spouse may be able to obtain an interim non-immigrant visa (either T Visa, U interim relief, or a VAWA Self-petition, depending on the facts) and eventually adjust her status under the Violence Against Women Act of 1996, 2000, and 2005 (also known as VAWA). VAWA protects spouses of U.S. citizens or residents who are victims of domestic violence, mental/psychological abuse, and/or abuse toward the children. The act also protects victims of crimes and trafficking. No special relationship is required between the perpetrator and the victims. The petitioner must assist federal officers or the Attorney General to prosecute these crimes.

The fifth and last requirement is that the alien must not be in one of the categories that is barred from adjustment of status. Congress enumerated certain categories which do not allow such aliens to adjust status to be a permanent resident. In some instances, a waiver may be available depending on the person's background and information. The statutory bars are as follows:

• Unauthorized Employment, Unlawful Status, or Failure to Maintain Status – Aliens who have engaged in unauthorized employment, who were not in lawful status at the time of filing of the adjustment application, or who have failed to continuously maintain status (even if only for a single day) since their entry into the United States are barred from adjustment of status. Exceptions to this rule include:
  • Immediate relatives (spouses, parents and unmarried children under 21-years old) of U.S. citizens are still eligible to adjust their status. A discretionary "extreme hardship" waiver or an application for cancellation of removal must be applied and granted by the Attorney General. If the alien is in a removal proceeding in the immigration court, the waiver must be asked during such proceeding. If the alien is not currently under removal, then a waiver must be sought with the United States Citizenship and Immigration Services (formerly the INS). In practice, the waiver should NOT be asked unless the alien is currently in removal proceeding in the immigration court. Applying for permanent residency when the alien is unlawful or out of status, even if he/she married a U.S. citizen, may trigger the detaining and removal of the alien;
  • Violation of status is in effect a "technical violation" which is not due to the alien's own fault. These "technical violations" include an individual's, organization's, or the U.S. citizen or permanent residence spouse's failure to act on behalf of the alien, and such inaction directly contributed to the violation of the alien's legal status; the USCIS' failure to act at a timely manner to an application properly filed by the alien; or the alien's physical disability precluded the alien from the ability to request a legal status on a timely basis;
  • Employment-based immigrants who have been out of status no more than 180 days in the U.S. are still eligible to adjust; or
  • The 245(i) exception, the LIFE Act, is available for those that qualify. As stated above, Section 245(i) allows an undocumented alien, or those who failed to maintain status or who overstayed in the U.S., to adjust their status to permanent residency if (1) an I-130 petition was filed for them by a U.S. resident or citizen on or before April 30, 2001; or (2) a labor certification application was filed on behalf of the alien by an employer, and I-140 application for employment based immigration has been approved. Additionally, under both categories, a visa must now be available based on the person's status and country of chargeability under the Visa Bulletin. "Chargeability," for the purposes of immigration law, is the country in which the alien was born. For example, if a person is from India, but that he later moved to Pakistan and is now a Pakistan citizen, the country of chargeability would still be "India."
• Exchange Visitors With J Visas – J-1 or J-2 non-immigrant status holders are subject to the two-year foreign residence requirement. They will be barred from adjustment if they have not completed their two-year foreign residence requirement or if they have not been granted a waiver of it.
• Fiancés With K visas – Aliens who are admitted under the K-1 category for fiancés may only be adjusted to permanent residence on a conditional basis, and only where the adjustment is a result of the K-1's marriage to the US citizen within ninety days of the entry to the U.S, and petition for alien fiancé by, the U.S. citizen fiancé who filed the petition to classify him or her as a K-1. In another words, even if the alien marries another U.S. citizen spouse, the alien is still barred from adjustment of status. As stated in Chapter 3, the conditional residence can be removed and obtain a permanent residence after 2 years by filing form I-751 with the Service at the end of the 2 year period (the alien can start applying within 90 days from the 2 year anniversary of the date the conditional residence was granted).
• Public Charge – "Public Charge" by definition means the dependence on the government and/or its agencies for assistance in medical and/or financial welfare. Aliens who wish to adjust their status must be able to prove that they or some sponsoring individual (such as a spouse) have the financial means of supporting themselves. Therefore, unless an alien can show that he or she will not be a public charge, they are not eligible to adjust their status.
• Aliens Who Are In Removal Proceedings And Marry A U.S. Citizen Or Permanent Resident – In these instances, there is a rebuttable presumption that the marriage was not entered into in good faith and as a result, the alien is ineligible for adjustment of status. However, this bar can be overcome (rebutted) if the alien can show that the marriage was entered into in good faith and not for the purpose of obtaining permanent residence.
• Aliens Who Entered Under Visa Waivers – Aliens who are tourist or business visitors that are admitted under what is called the "Visa Waiver Pilot Program", which is covered under section 217 of the Immigration and Nationality Act, or under what is called the "Guam Visa Waiver Pilot Program" which is covered under section 212(1) of the Act, are barred from adjustment of status. However, this bar does not apply to persons seeking adjustments as spouses or unmarried minor children of U.S. citizens. Furthermore, the 245(i) exception is also available for those that qualify.
• Crewmembers With D Visas -- Foreign national crewmen who were serving on board a vessel or aircraft at the time of their arrival are barred from adjustment of status. However, the 245(i) exception is available for those that qualified.
• Transits Without a Visa -- Aliens in transit without a visa, traveling through the U.S. to another country, are barred from adjustment of status. However, the 245(i) exception is available for those that qualified.

Application Procedures

Procedures for An Application for Adjustment of Status Based on An I-130 Immigrant Petition For Alien Relative

As stated above, an application to adjust status may only be applied if the alien is currently in the United States. If the alien does not reside in the United States, he/she cannot adjust status in the U.S. and must go through immigrant visa processing at a U.S. consulate abroad instead. If an immigrant visa is issued by the U.S. Consular Office abroad, a green card will be issued once the person has arrived in the U.S. (about 3-4 weeks after arrival).

An I-485 application for adjustment of status may be filed concurrently (at the same time) as a petition for an immediate relative (spouses, parents, and unmarried children of U.S. citizens under 21) if the person is in the U.S. The filing of the I-130 will allow the alien to remain in the United States even if their status is running out. For example, if an alien is in the U.S. under a B-2 visitor visa for pleasure, and she married a U.S. citizen while here in the U.S. and an I-130 application was filed prior to the expiration of her I-94, she may remain in the U.S. while her I-130 and I-485 applications are pending.

Procedures for An Application for Adjustment of Status Based on An I-140 Immigrant Petition By An Employer

Employment Based preference 1 through 3 may file an I-485 application for adjustment of status for the beneficiary alien worker at the same time as the I-140 petition, IF a visa is currently available at the time of filing. If a visa is not available, based on the Visa Bulletin, then the alien must wait until such visa is available. The filing of the I-140 application by the employer on behalf of the alien worker will also allow the alien to stay in the U.S. while the I-140 or I-485 are pending. If the person's work visa is running out (i.e. the person is at the end of the statutory period under the work visa to remain in the U.S.), the person may apply for extension while waiting for the decision of the Service.

Procedures for An Application for Adjustment of Status Based on A Public Interest Parolee (PIP) & Adjustment of Status

A "Parolee" is a person who has been granted permission to enter the U.S. for humanitarian or public interest reasons. Parolee status is granted at the discretion of the U.S. Attorney General and may be revoked at any time. A person granted parolee status under section 212(d)(5) of the INA does not qualify as a refugee. Section 586 of the Foreign Operations, Export, Financing and Related Programs Appropriations Act of 2001 allows Cambodian, Laotian, and Vietnamese nationals who were paroled into the U.S. as public interest parolees (PIPs) to adjust their status from parolee to lawful permanent resident. The person must be "inspected and paroled into the United States before October 1, 1997 and was physically present in the United States on October 1, 1997." The original law also limits 5000 parolees to adjust and set a limit of 3 years to file for adjustment after the date the Attorney General issued "implementing regulations. On December 8, 2004, the Consolidated Appropriations Act (Public Law No. 108-447) was signed into law. Section 534 of the Act eliminated the 5,000-person limit on acquiring permanent resident status, and also eliminated the three-year deadline set by the original law. Therefore, essentially, all parolees from Cambodia, Laos, and Vietnam who were paroled into the United States on or before October 1, 1997 will be able to adjust their status to permanent residency. Those that entered the U.S. after October 1, 1997 will maintain their parolee status and may be revoked by USCIS at anytime. These parolees will be vulnerable until new regulations that would allow them to adjust their status.

Procedures for An Application for Adjustment of Status Based on A Refugee/Asylee

First, an alien who entered the U.S. with an I-94 or stamp on their Passport as a "Refugee Parolee" may adjust their status one year from the date of entry. Second, an alien who entered the United States with an I-94 or stamp on their passport as an "Asylum Parolee" may adjust their status after an I-589 application has been approved. Third, an alien who entered the country, either as a documented or undocumented alien, who then filed form I-589 with the USCIS or with immigration court (or the BIA), may apply to adjust his/her status once a asylum application has been approved.

Applicants for adjustment of status must be extremely careful before filing their applications. Applicants should consult a seasoned immigration and naturalization attorney to find out about their qualifications and applications requirements, especially those with past criminal convictions. Certain past criminal convictions, though seemingly minor to an ordinary person, under immigration and naturalization law would make the alien removable (deportable) or barred from applying for adjustment of status. However, under certain circumstances, the alien may be able apply for waivers and/or cancellation of removals. Please contact one of our immigration attorneys at http://www.houston-immigration-lawyers.com for more information and assistance in filing your adjustment of status or other immigration applications.