Introduction
Adjustment of status or “AOS” is the process by which an eligible foreign national who is physically present in the United States can obtain permanent resident status (a green card) without having to return to their home country to complete immigrant visa processing at a U.S. Consulate. The term for a change to permanent resident status while in the U.S. is called “adjustment of status.”
NOTE: Adjustment of status (AOS) is an alternative to obtaining an immigrant visa through a U.S. consulate abroad, a process known as “immigrant visa processing” (IVP) or, more commonly, consular processing (CP).
Requirements To Apply For Adjustment of Status
A foreign national may apply for Adjustment of Status (Form I-485) if:
- The applicant is already inside the U.S.
- The applicant’s immigrant visa petition is approved by the USCIS
- An immigrant visa is readily available to the applicant
- The applicant is in valid legal status and has always maintained a valid legal status or has the benefit of an exception.
NOTE: Some visa numbers are limited by law to certain family members of U.S. citizens and lawful permanent residents (as well as employment-based applicants) and are further limited by per-country quotas. This means that even if the USCIS approves the immigrant visa petition, the foreign national beneficiary may not get an immigrant visa number immediately. In certain cases, several years could pass between the time USCIS approves the immigrant visa petition and the Department of State gives the beneficiary an immigrant visa number.
A. Who May Apply?
1. Relatives of U.S. Citizens
i. Spouse
ii. Unmarried child(ren) under age 21
iii. Parents (mother or father)
iv. Unmarried son(s)/daughter(s) age 21 or older
v. Married son(s)/daughter(s) of any age, and
vi. Brother(s)/sister(s)
2. Relatives of Permanent Residents (Green Card Holders)
i. Spouse
ii. Unmarried child(ren) under age 21
iii. Unmarried son(s)/daughter(s) age 21 or older
3. Spouse of U.S. Citizen Who Entered The U.S. on A K-1 Fiancée Visa
i. Foreign national who was admitted to the U.S. on a K-1 visa and then married the U.S. citizen who filed the K-1 visa petition, and
ii. Unmarried, minor child(ren) of the K-1 spouse
NOTE: A foreign national who was admitted to the U.S. on K-1 visa but did not marry the U.S. citizen who filed the K-1 fiancée petition, or who marries another U.S. citizen or lawful permanent resident is not eligible to adjust status in the U.S.
4. Spouse of U.S. Citizen Who Entered The U.S. on A K-3 Visa
i. Foreign national spouse of U.S. citizen who entered the U.S. on a K-3 nonimmigrant visa, and
ii. Unmarried, minor child(ren) of the K-3 spouse
NOTE: A K-3 visa holder may obtain an extension of his or her K-3 status as well as the status of the dependent children on K-4, in 2-year intervals while his or her adjustment of status application is pending.
5. Asylees or Refugees In The U.S.
i. Asylee who has been in the U.S. for at least one year after being granted asylum, and still qualifies for asylum status, and
ii. Refugee who has been in the U.S. for at least one year after entry in refugee status, and still qualifies for refugee status
6. Cuban Citizens Residing In The U.S. For At Least One Year
Cuban citizen or native who has been in the U.S. for at least one year after being inspected, admitted, or paroled into the U.S. The spouse and children who are residing in the U.S. may also be eligible for Adjustment of Status.
7. Immigrants Under Section 245(i)
Section 245(i) of the Immigration & Nationality Act provides a special exception for foreign nationals that have either entered the U.S. illegally or otherwise violated their status in the U.S. to adjust status by paying a civil penalty. To qualify, a foreign national must meet one of the following four conditions:
i. The foreign national is the beneficiary of an immigrant visa petition properly filed on or before January 14, 1998, which was approvable on the date of filing, regardless of whether it was subsequently denied or withdrawn, or its approval was revoked except in cases where there is evidence of fraud
ii. The foreign national is the beneficiary of an application for labor certification which was properly filed on or before January 14, 1998, regardless of whether it was subsequently denied or withdrawn, except in cases where there is evidence of fraud
iii. The foreign national is the beneficiary of an immigrant petition properly filed after January 14, 1998, and on or before April 30, 2001, which was approvable on the date of filing regardless of whether it was subsequently denied or withdrawn, or its approval was revoked except in cases where there is evidence of fraud, and the foreign national was physically present in the U.S. on December 21, 2000, or
iv. The foreign national is the beneficiary of an application for labor certification that was properly filed after January 14, 1998, and on or before April 30, 2001, regardless of whether it was subsequently denied or withdrawn, except in cases where there is evidence of fraud, and the foreign national was physically present in the U.S. on December 21, 2000
B. Who May Not Apply
A foreign national may not be able to apply for AOS to permanent resident status if:
1.The foreign national entered the U.S. while in transit to another country without obtaining a visa
2. The foreign national entered the U.S. as a nonimmigrant crewman (D visa)
3. The foreign national was not admitted or paroled into the U.S. after being inspected by a U.S. Immigration Inspector (i.e., “entered without inspection” or EWI)
4. The foreign national has ever been, or is now employed in the U.S. without USCIS authorization or is no longer legally in the country (has violated their status in some other manner)
There are certain limited exceptions:
i. The violation of status was through no fault of the foreign national or for some technical reason or
ii. The foreign national is an immediate relative of a U.S. citizen (parent, spouse, or unmarried child under 21 years old) or
iii. Foreign medical graduate, employee of an international organization, or a family member of an employee of an international organization who meets certain time requirements ➜ I’m not familiar with these exceptions- where are these exceptions found
5. The foreign national is a J-1 or J-2 exchange visitor subject to the two-year foreign residence requirement of Section 212(e) and has not met the home residence requirement or been granted a waiver for this requirement
6. The foreign national is present in the U.S. in A (diplomatic status) or G (representative to international organization) nonimmigrant status
NOTE: This rule can be waived if the foreign national completes USCIS Form I-508 (I-508F for French nationals) to waive diplomatic rights, privileges and immunities.
7. The foreign national was admitted to Guam as a visitor under the Guam visa waiver program
NOTE: This rule does not apply to immediate relatives of U.S. citizens.
8. The foreign national was admitted to the U.S. as a visitor under the visa waiver program
NOTE: This rule does not apply to immediate relatives of U.S. citizens.
9. The foreign national is already a conditional permanent resident
or
10. The foreign national was admitted as a K-1 fiancé(e) but did not marry the U.S. citizen who originally filed the K-1 petition
C. Availability of Immigrant Visas
A foreign national applicant for AOS must be eligible to receive an immigrant visa and an immigrant visa must be immediately available in order for him or her to apply. The availability of an immigrant visa is determined by the immigrant visa category under which the foreign national is applying (i.e., first, second, third or fourth preference or as an immediate relative). With the major exception of “immediate relatives” of U.S. citizens (who are not subject to numerical limitations), immigrant visa numbers are subject to strict quotas mandated by law. The number of visas available in each preference category is further limited on a per-country basis. Unfortunately, the result of this allocation system is that for all family-based preference categories, the demand for immigrant visas outstrips the supply, creating a “waiting line” or a term called “retrogression.” For members of some preference categories, depending on the country of the foreign national’s birth, the wait can be as much as twenty years!
NOTE: As immediate relatives of U.S. citizens are not subject to quotas, they do not fall under any preference quota, thus, they are not subject to retrogression and will be issued immigrant visas immediately.
CASE SCENARIO
On January 1, 2011, Christine marries a U.S. legal permanent resident. This makes her eligible to immigrate in the second preference family based category. According to the Dept. of State, the current priority date for this category is January 1, 2008.
Because visas are not immediately available to Christine, she cannot file an application for adjustment of status concurrently with the preference immigrant petition. On the other hand, she cannot postpone the filing of the petition, because the only way that she can get on the waiting list and establish a “priority date” is by having a petition filed. Thus, Christine’s husband must file the preference petition without the adjustment application. Once the priority date becomes current, she can file the application for adjustment of status. During this time, she must maintain lawful nonimmigrant status or qualify under an exception.
Adjustment of Status or Consular Processing Comparison
| Features | Adjustment of Status | Consular Processing |
|---|---|---|
| Filing Location | Inside the US | Initiated in the U.S. and completed Outside the US |
| Processing Time | Usually 4 to 8 months | Usually 6 to 8 months |
| Work Permit | Yes | No |
| Travel Requirement | Adjustment of Status does not require any international travel | Consular cases may require travel by the principal applicant and family members to the American consulate in the country of nationality or last residence. |
| Police Certificates Appeal | Not necessarily required | Required |
| There are procedures for appealing or renewing a denied application for adjustment of status | There are no procedures for formally appealing a denied immigrant visa application | |
| Effect of Delays | Foreign national may remain in the U.S. until the AOS is adjudicated and continue working if the work permit is maintained | Foreign national may be stranded outside the U.S. until any issues or problems are resolved |
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