ADJUSTMENT OF STATUS
Green Card through Adjustment of Status is the process by which an eligible individual already in the United States can get permanent resident status (a green card) without having to return to their home country to complete visa processing. One can file for adjustment of status with USCIS or request an adjustment of status in immigration court as a defense. An alternative to adjustment of status is Consular Process.
1. DETERMINE IMMIGRANT CATEGORY
Most immigrants become eligible for a green card (permanent residence) through a petition filed on his or her behalf by a family member (on Form I-130) or employer (on Form I-140). Others categories are asylees, refugees, cancellation of removal petitioners, immigrant lottery winners etc. The only way an individual can apply for adjustment is if he or she: (1) entered with inspection; (2) was paroled; (3) is VAWA eligible; or (4) is 245(i) eligible.
FAMILY BASED ADJUSTMENT
Immediate relatives of U.S. citizens, including parents, spouses and unmarried children under the age of 21, do not have to wait for an immigrant visa number to become available once the petition filed for them is approved by the USCIS. An immigrant visa number will be immediately available for immediate relatives of U.S. citizens.
If an individual is married to a U.S. citizen, or otherwise qualifies as immediate relative he or she should be adjustment eligible, notwithstanding being out of status. This is because section 245(c) exempts falling out of status as a basis for disqualification for immediate relatives. However, the situation would be different if an applicant is a preference alien rather than the immediate relative.
Applicants other than immediate relatives must check visa availability for their category. One may not file his Form I-485 until immigrant visa is available in his category. To check if the immigrant visa is available check Visa Availability page.
EMPLOYMENT BASED ADJUSTMENT
An applicant must be in lawful nonimmigrant status such as H-1B or L-1 to file for Adjustment of Status or should leave the country and submit to Consular Process. TPS (temporary protective status) recipients may adjust status based on employment. Any employment-based adjustment applicant who is not in a lawful nonimmigrant status at the time of filing for adjustment is barred from adjusting status, even if the applicant is lawfully present in the United States. For example, a parolee is barred from seeking employment-based adjustment, because a parolee is not a lawful nonimmigrant status. Asylees are barred from adjustment of status through employment.
Employment First Preference Category usually is current which means qualified applicants can file for Adjustment of Status regardless of the applicant’s priority date.
All other applicant have to wait until the numbers are current (letter “C”) or a date for given category is later than applicant’s priority date. Review Availability of Immigrant Visas for more detail.
INA § 245(k) exception:
Under INA § 245(k) employment-based applicants who are ineligible to adjust status under INA § 245(a) may do so if
(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;
(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days-
(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment;
(C) otherwise violated the terms and conditions of the alien’s admission.
Applicants who were in a lawful nonimmigrant status at the time of filing for adjustment, may leave the US and returned using an approved advance parole travel document while the adjustment application remains pending. Advance parole simply allows the applicant to resume the processing of the adjustment application without abandoning the application because of a brief departure.
SPECIAL CLASSES OF IMMIGRANTS
Certain immigrants may file a Form I-360 or have one filed on their behalf and Adjust their Status.
2. Widows and Widowers;
3. Battered or abused spouses or children of US Citizen or Permanent Resident;
4. Special Immigrants such as religious workers, physicians who entered the country before 1978 on H-1 or J-1 visas, Juvenile Court Dependents, Armed Forces members.
INELIGIBILITY TO ADJUST STATUS
The following aliens are restricted from adjusting his or her status under INA 245(a):
- Entered as a transit alien traveling without a nonimmigrant visa;
- Entered as a crewman (D1);
- Entered under Visa Waiver Program (VWP) unless an applicant is immediate relative of a US citizen.
- Entered Without Inspection (EWI);
- Ever employed without authorization except
- immediate family members,
- special immigrant juveniles,
- K-1 fiancé or K-2 fiancé dependent who married the US petitioner within 90 days admission
- Certain G-4 international organization employees, NATO-6 employees, and their family members
- Violence Against Women Act (VAWA)-based applicants ;
- Entered as K-1 fiancé but did not marry the US Petitioner or K-2 child whose parent did not marry the petitioner;
- J-1 or J-2 exchange visitor and his dependent who is subject to two year home requirement and did not obtain waiver;
- Not in lawful immigration status when filing (other than through no fault of his own or for technical reasons);
- Ever failed to maintain continuous lawful immigration status (other than through no fault of the alien or for technical reasons *);
- Ever violated terms and conditions of nonimmigrant admission;
- Not maintaining a lawful nonimmigrant status when filing (only applies to employment-based applicants).
*A failure to maintain lawful status is not “for technical reasons” where the alien filed an asylum application while in lawful nonimmigrant status , the nonimmigrant status subsequently expired, and the asylum application was referred to the Immigration Court prior to the alien applied for adjustment of status. (See In re L-K-, Respondent).
FILE FORM I-485 TO ADJUST STATUS
If you are in the United States and are eligible for adjustment of status, you may file a Form I-485 together with all the supporting documentation.
Documents Checklist for the applicant
- A copy of the Form I-797, Approval or Receipt Notice, for the principal applicant’s Form I 130 (unless you are filing your Form I-485 together with the principal applicant’s Form I 485) or Form I-140.
- Two passport style photographs
- A copy of your government-issued identity document with photograph
- A copy of your birth certificate. If it is unavailable or does not exist, submit other acceptable evidence of birth such as church, school, or medical records, and proof of unavailability or nonexistence.
- Inspection and admission, or inspection and parole documentation (unless applying for adjustment under INA 245(i)). For more information and examples, please see the form instructions.
- Form I-864, Affidavit of Support or I-864W (if applicable), and Form I-864A (if applicable)
- Certified police and court records of all criminal charges, arrests, or convictions regardless of final disposition (if applicable)
- Form I-601, Application for Waiver of Grounds of Inadmissibility (if applicable)
- Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal (if applicable)
- Documentation regarding J-1 and J-2 exchange visitor status (Form I-612, if applicable)
- Form I-508, Waiver of Diplomatic Rights, Privileges, Exemptions, and Immunities (if applicable)
- Form I-566, Interagency Record of Request – A, G, or NATO Dependent Employment Authorization or Change/Adjustment to/from A, G, or NATO Status (only if you have A, G, or NATO nonimmigrant status).
- Form I-485 Supplement A, Adjustment of Status Under Section 245(i) (Supplement A) (if applicable)
To check if the documents are available in your country check at the website for Department of State https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country.html
Frequently Asked questions:
Can I still get my green card application approved if my wife (U.S. Citizen) gets convicted of a DUI and a Hit and Run?
Yes, because she is the U.S. citizen. Any conviction of a citizen has does not affect his/or her ability to sponsor and file on behalf of a foreign national spouse or relative, UNLESS it is of sexual crimes (especially with a minor) that the citizen has been convicted.
I’m an out of status student and I’ve overstayed my visa. I am married to US citizen for two years and have a child. We couldn’t apply for my green card due to financial reasons. In the meantime I’ve been working to support my family while my wife attended college. Now, the marriage is not working well and we’re considering separation. Is it still possible for me to get a green card? Can I get a green card through my child?
Your child can petition for you when he/she turns 21.
I have been a resident in the U.S. since 2003. I have been out of the U.S. for more than one year. During this time my green card has expired. I am in Romania and I would like to know what I can do to go back to the U.S. and renew my green card. My intention when I left the U.S. was to return within 6 months but due to some health problems with my father I could not return.
Being outside of the U.S. for more than 1 year is normally an abandonment of your green card. Talk to the U.S. Consul about a returning resident visa. Provide proof of your father’s medical treatment/condition.
My Asylum application was approved one year ago and I can now apply for my green card. I got married after my asylum application had been approved, and my wife was not part of asylum. Can I put my wife’s name in my green card application so she receives her green card as a derivative applicant?
You cannot file an asylee relative petition if you were married after your asylum was approved. You can file for your spouse, once you are granted permanent resident status, as the spouse of a permanent resident provided visa is current for spouses of permanent residents.
Does my new employer have to prove “Ability to Pay under AC21 portability?
USCIS will not request proof of “ability to pay” from your new employer but they may issue RFE to verify the legitimacy of your new employer as well as your job offer. While adjusting your I-485, USCIS will also evaluate the potential of you becoming a public charge so it is essential that your new employer has relevant materials ready, which may include the same documents required as proof of ability to pay.
Can an alien port to self-employment under INA § 204(j)?
Yes, as long as the requirements are met. First, the key is whether the employment is in a “same or similar” occupational classification as the job for which the original I-140 petition was filed. Second, it may be appropriate to confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues. Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I- 140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment.
Can I do voluntary work while waiting for my adjustment to come through?
It really depends on the nature of the volunteer work and the basis upon which you are applying for adjustment of status. If your volunteer work is work that someone would typically be paid to do (i.e. an unpaid internship), then it would not be permitted if you did not have employment authorization. But, if your adjustment of status is based on a petition by an immediate family member (e.g. spouse), then even if your volunteer work was a technical violation of your tourist visa, it would not prevent your adjustment from being approved. Play it safe, so if you have any doubts, just wait until you are authorized to work.
CONTACT WASHINGTON, DC IMMIGRATION LAWYER TO HELP YOU WITH YOUR ADJUSTMENT OF STATUS APPLICATION.
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