Eligibility, application process, concurrent filing, and potential challenges for applicants seeking permanent residence while staying in the U.S.
February 14, 2024
Adjustment of Status (AOS) is a critical step in the immigration process for many individuals seeking to become lawful permanent residents in the United States. Through Adjustment of Status, eligible applicants can apply for a Green Card without having to leave the country. This process is often utilized by those seeking marriage-based Green Cards, family-based Green Cards, and employment-based Green Cards.
In this comprehensive guide, we will discuss the key aspects of getting a Green Card through the Adjustment of Status process, including,
When seeking permanent residence (Green Card) in the United States, there are two main pathways: Adjustment of Status and Consular Processing. It’s important to understand the differences between these two processes to determine the best option for your situation.
Adjustment of Status is the process through which an eligible individual who is already in the United States can apply for permanent resident status without having to return to their home country for consular processing. This process is generally used by individuals who are physically present in the United States and have a valid immigration status or qualify for an exemption. The application is filed with U.S. Citizenship and Immigration Services (USCIS), and the entire process is completed within the United States.
Consular Processing is the process of applying for an immigrant visa through a U.S. embassy or consulate in the applicant’s home country. This process is used by individuals who are outside the United States or those who are ineligible to adjust their status while in the country. The initial petition is filed with USCIS, but the applicant must attend an interview at a U.S. embassy or consulate abroad to complete the immigrant visa process.
To apply for a Green Card through Adjustment of Status, applicants must first meet specific eligibility requirements. These requirements may vary depending on the Green Card category being pursued. Below are some detailed eligibility requirements for AOS.
Applicants must have a valid immigration status at the time of filing for Adjustment of Status. They must be physically present in the United States and have entered the country legally through inspection and admission or parole. This means they were allowed into the country by an immigration officer, and their entry was properly documented.
For most Green Card categories, a visa number must be available for the applicant. This means there must be an open slot in the annual visa quota for the applicant’s preference category, and the applicant’s priority date must be current. Visa availability depends on the applicant’s preference category, country of chargeability, and the demand for visas in that category. For immediate family members of U.S. citizens, visa numbers are always available for Green Cards and there is no wait time.
Applicants must have a qualifying relationship or basis for applying for a Green Card through Adjustment of Status. Common categories include the following.
Applicants must be an immediate relative (spouse, parent, or unmarried child under 21) of a U.S. citizen, or fall under one of the family preference categories (e.g., married children or siblings of U.S. citizens, or relatives of lawful permanent residents). Each preference category has its own set of requirements, and applicants must meet those criteria to be eligible for a family-based Green Card.
Another category that allows for the adjustment of status to obtain a Green Card is the Fiancé Visa (K-1 Visa) category. Once the Form I-129F (Petition for Alien Fiancé(e)) is approved, the foreign fiancé/fiancée can apply for a K-1 visa at the U.S. embassy or consulate in their home country. After entering the United States, the couple must get married within 90 days. Following the marriage, the foreign spouse can then apply for Adjustment of Status to obtain a marriage-based Green Card, allowing them to become a lawful permanent resident of the United States.
Applicants must have a job offer from a U.S. employer, and the employer must have obtained an approved labor certification (if required) and filed an immigrant visa petition (Form I-140) on their behalf. The job offer must be for a full-time, permanent position, and the applicant must meet the education, experience, and other requirements for the job.
Applicants must qualify under one of the humanitarian-based immigration programs, such as asylum applicants and refugees, Violence Against Women Act (VAWA) Self-Petitioners, refugees, or victims of certain crimes (U or T visa holders). Each humanitarian category has specific eligibility requirements and processes that applicants must meet and follow to be eligible for Adjustment of Status.
Applicants who have won the Diversity Visa Lottery must meet the education or work experience requirements and be admissible to the United States. Winning the lottery does not guarantee a Green Card, as the number of winners exceeds the available visas. Applicants must act quickly to complete the Adjustment of Status process within the fiscal year they are selected.
Applicants must belong to one of the special immigrant categories, such as religious workers, special immigrant juveniles, or certain Iraqi and Afghan nationals who worked for the U.S. government. Each special immigrant category has its own set of requirements, which applicants must meet to be eligible for Adjustment of Status.
Applicants must be admissible to the United States, meaning they do not have any disqualifying factors such as criminal history, national security concerns, or previous immigration violations. Grounds of inadmissibility can include health-related issues, criminal convictions, security risks, public charge concerns, and previous immigration violations like fraud or misrepresentation. In some cases, applicants may be eligible for a waiver of inadmissibility by filing Form I-601 or I-212, depending on the specific ground of inadmissibility.
For family-based Adjustment of Status applicants, a financial sponsor (usually the petitioner) must submit an Affidavit of Support (Form I-864) to demonstrate their ability to financially support the applicant and prevent them from becoming a public charge. The sponsor must be a U.S. citizen or lawful permanent resident, at least 18 years old, and have an income of at least 125% of the federal poverty guidelines for their household size (100% for active-duty military personnel sponsoring their spouse or child).
Please note that the specific eligibility criteria may vary depending on the Green Card category under which the applicant is applying. It is crucial to review the requirements for your particular situation to ensure you are eligible for Adjustment of Status.
The 90-Day Rule is an important concept to understand when applying for Adjustment of Status, as it can significantly impact your Green Card application. The rule is a guideline used by U.S. immigration officers to determine whether an individual has misrepresented their intentions when entering the United States on a nonimmigrant visa, such as a tourist or student visa.
According to the 90-Day Rule, if a nonimmigrant visa holder applies for Adjustment of Status or another immigration benefit within 90 days of entering the United States, the U.S. Citizenship and Immigration Services (USCIS) may presume that the applicant had a preconceived intent to immigrate when they entered the country. This could lead to a finding of misrepresentation or even visa fraud, resulting in the denial of the Adjustment of Status application or other severe consequences, such as deportation.
It’s important to note that the 90-Day Rule is not a hard and fast rule, but rather a guideline for evaluating an applicant’s intentions. However, if you apply for Adjustment of Status after 90 days of entry, the presumption of misrepresentation does not automatically apply, and you may have a better chance of proving that you entered the United States with genuine nonimmigrant intentions.
The costs associated with the Adjustment of Status process can vary depending on the specific forms and services required for your case. Here are some of the most common fees associated with obtaining a Green Card through Adjustment of Status process.
Please note that fees are subject to change and it is always a good idea to verify the current fees on the USCIS website or with your immigration lawyer. Additionally, fee waivers may be available for certain forms and under specific circumstances.
Adjustment of Status involves several steps, which must be completed in the correct order to ensure a successful outcome. Here are the general steps involved in the AOS process.
Before starting the Adjustment of Status process, applicants must determine if they are eligible for a Green Card based on their specific circumstances, such as their relationship to a U.S. citizen or lawful permanent resident, employment offer, or another qualifying basis for Adjustment of Status.
In most cases, a petition must be filed for a Green Card on behalf of the applicant by a qualifying family member, employer, or another eligible party. For family-based Adjustment of Status, the petitioner files Form I-130, Petition for Alien Relative. For employment-based Adjustment of Status, the employer files Form I-140, Immigrant Petition for Alien Worker. Once the petition is approved, the applicant can move on to the next step.
Adjustment of Status applicants must wait for a visa number to become available. For immediate relatives of U.S. citizens, visa numbers are always available. For other Green Card categories, applicants must monitor the Department of State’s Visa Bulletin to determine when their priority date becomes current.
Once a visa number is available, the applicant can file Form I-485, Application to Register Permanent Residence or Adjust Status. Supporting documents, such as birth certificates, marriage certificates, and police clearance certificates, should be included with the application. Green Card applicants must also submit the required fees with their application.
After submitting Form I-485, the applicant will receive a notice to attend a biometrics appointment at a local Application Support Center (ASC). At the appointment, the applicant’s fingerprints, photograph, and signature will be collected for background checks and to create their green card.
Adjustment of Status applicants must undergo a medical examination by a USCIS-designated civil surgeon. The results of the examination must be submitted using Form I-693, Report of Medical Examination and Vaccination Record. The medical examination ensures that the applicant does not have any health conditions that would make them inadmissible to the United States.
In most cases, Adjustment of Status applicants will be required to attend an in-person interview at a USCIS field office. During the interview, a USCIS officer will review the applicant’s file, ask questions about their application, and assess their eligibility for Adjustment of Status. The applicant should bring all relevant documents, including their passport, to the interview.
After the interview, USCIS will issue a decision on the applicant’s Adjustment of Status application. If the application is approved, the applicant will become a lawful permanent resident, and their green card will be mailed to them. If the application is denied, the applicant will receive a notice explaining the reasons for the denial and their options for appeal.
Please note that the specific steps and forms involved in the Adjustment of Status process may vary depending on the applicant’s individual circumstances and the category under which they are applying for a Green Card. It is essential to carefully review the requirements for your particular situation and follow the appropriate steps to ensure a successful Adjustment of Status process.
Concurrent filing is a streamlined process that allows certain Green Card applicants to file their Form I-485, Application to Register Permanent Residence or Adjust Status, at the same time as their immigrant petition (Form I-130 or Form I-140). This process can significantly reduce the overall processing time for obtaining a green card.
The following categories are eligible for concurrent filing.
Spouses, unmarried children under the age of 21, and parents of U.S. citizens can file Form I-485 concurrently with Form I-130, Petition for Alien Relative. Immediate relatives of U.S. citizens do not have to wait for a visa number to become available, as these visas are always available for this category for a Green Card.
Applicants in the first, second, and third employment-based preference categories (EB-1, EB-2, and EB-3) can file Form I-485 concurrently with Form I-140, Immigrant Petition for Alien Worker, if a visa number is immediately available. Visa availability can be checked in the Department of State’s Visa Bulletin.
To file concurrently, applicants must submit both the immigrant petition and the Adjustment of Status application, along with all the required supporting documents and fees, to the appropriate USCIS office. USCIS will process both applications simultaneously, which can expedite the overall process and reduce waiting times.
Please note that concurrent filing is not available for all categories of applicants. Those who are not eligible for concurrent filing must first have their immigrant petition approved and wait for a visa number to become available before filing Form I-485 for a Green Card. It is essential to verify whether concurrent filing is an option for your specific situation before submitting any applications.
While your Adjustment of Status application is pending, you may be eligible to apply for employment authorization and advance parole. These additional benefits can provide you with the ability to work legally in the United States and travel abroad without jeopardizing your pending Adjustment of Status application for a Green Card.
An Employment Authorization Document (EAD), commonly referred to as a work permit, allows you to work legally in the United States while your Adjustment of Status application is being processed. To apply for an EAD, you must file Form I-765, Application for Employment Authorization, along with the appropriate fee, if required. Once approved, your EAD will be valid for one year and can be renewed until your Adjustment of Status application is approved or denied.
Advance parole is a travel document that allows you to leave the United States and return without abandoning your Adjustment of Status application for a Green Card. To apply for advance parole, you must file Form I-131, Application for Travel Document, along with the appropriate fee, if required. Once approved, your advance parole document will be valid for one year and can be renewed until your Adjustment of Status application is approved or denied.
Please note that obtaining an EAD or advance parole does not guarantee approval of your Adjustment of Status application. Additionally, certain categories of applicants, such as those with a pending asylum application or those who are in removal proceedings, may face restrictions on their ability to obtain employment authorization or advance parole. It is crucial to consult with an immigration lawyer to understand the specific requirements and potential risks associated with your individual case.
The Adjustment of Status interview is an essential part of the AOS application process. During the interview, a USCIS officer will assess your eligibility for a Green Card and verify the information provided in your application. The following steps outline the interview process.
Working with an immigration lawyer can help you prepare for the interview and address any potential issues that may arise during the process. An immigration lawyer can provide guidance on how to respond to specific questions, ensure that you have all the necessary documents for the interview, and even accompany you to the Adjustment of Status Green Card interview itself. Their expertise and support can help put you at ease and increase your chances of obtaining a Green Card through Adjustment of Status.
After completing the Adjustment of Status interview, you will await a decision on your Green Card application. The following steps outline the decision process and subsequent actions.
USCIS will issue a decision on your Adjustment of Status application, typically within a few weeks to several months after the interview. The decision will either approve, deny, or request additional evidence for your application.
Once you have held your Green Card for a certain period (usually three to five years), you may be eligible to apply for U.S. citizenship through naturalization. Check the eligibility requirements and consult an immigration lawyer for guidance on the naturalization process.
The timeline for the Adjustment of Status process can vary significantly depending on various factors such as the applicant’s basis for adjustment, the USCIS office handling the case, and current processing times. Here is a general overview of the timeline for getting a Green Card through the Adjustment of Status process.
Please note that these timelines are approximate and can vary depending on a variety of factors. It is important to regularly check the USCIS processing times for the specific forms and service centers handling your case to get the most accurate estimate of your Adjustment of Status application’s processing time.
Applicants for Adjustment of Status may face various challenges and issues during the process. Being aware of these potential obstacles can help you prepare and address them effectively.
By being aware of these common challenges and issues, you can better prepare for the Adjustment of Status process and increase your chances of success for a Green Card.
Navigating the Adjustment of Status process can be complex and time-consuming. An experienced immigration lawyer can provide invaluable assistance throughout the process, ensuring that your application is completed accurately and efficiently. Here are some ways an immigration lawyer can help.
By working with an experienced immigration lawyer, you can navigate the Adjustment of Status process more efficiently and with greater confidence, increasing your chances of a successful outcome.
If you are considering applying for Adjustment of Status, especially for family or marriage-based Green Cards, it’s essential to have the right guidance and support throughout the process. Our experienced immigration lawyers in Atlanta at Glenn Immigration Law Firm can help you understand the eligibility criteria, navigate the application process, and address any challenges or issues that may arise. Don’t leave your family-based or marriage Green Card application to chance; contact us today to schedule a consultation with attorney Pepper N. Glenn and let us help you become a permanent resident of the United States of America.
Obtaining a Green Card through the Adjustment of Status process can be complex and may raise many questions for applicants. In this section, we have compiled a list of frequently asked questions about Adjustment of Status to help you better understand the process, requirements, and common concerns.
Adjustment of Status is the process of applying for a Green Card from within the United States, whereas consular processing is the process of applying for an immigrant visa from a U.S. consulate or embassy outside of the United States.
Yes, you can include your spouse and unmarried children under 21 years of age as derivative beneficiaries on your Adjustment of Status application, provided that they are eligible based on your immigrant category.
The processing time for Adjustment of Status applications can vary widely depending on factors such as your basis for adjustment, the USCIS office handling your case, and current processing times. Generally, applicants can expect a decision on their Adjustment of Status application within 6-12 months after filing, but it may take longer in some cases.
You can check the status of your Adjustment of Status application online by visiting the USCIS Case Status Online website and entering your receipt number. Additionally, you can sign up for a USCIS account to receive case updates and notifications via email or text message.
If you have a valid Advance Parole (Form I-131) document, you can travel outside the United States while your Adjustment of Status application is pending. However, if you leave the United States without a valid Advance Parole document, your Adjustment of Status application may be considered abandoned, and you may be denied re-entry to the United States.
Applicants for adjustment of status must undergo a medical examination performed by a USCIS-designated civil surgeon. The medical examination includes a review of your medical history, a physical examination, and tests for certain communicable diseases. The civil surgeon will complete Form I-693, Report of Medical Examination and Vaccination Record, which you must submit to USCIS as part of your Adjustment of Status application.
Yes, you can work while your Adjustment of Status application is pending if you have a valid Employment Authorization Document (EAD). To obtain an EAD, you must file Form I-765, Application for Employment Authorization, along with your Adjustment of Status application or while it is pending.
If your Adjustment of Status application is denied, USCIS will provide a written notice detailing the reasons for denial. Depending on the reasons for denial, you may be able to file an appeal, a motion to reopen, or a motion to reconsider the decision.
If you are applying for Adjustment of Status based on employment, you generally need a job offer and an employer to sponsor you. Your employer will need to file a Form I-140, Immigrant Petition for Alien Worker, on your behalf. However, certain applicants, such as individuals with extraordinary ability, may self-petition for Adjustment of Status without an employer sponsor.
Yes, if you are eligible for Adjustment of Status through another basis, such as marriage to a U.S. citizen, you may apply for Adjustment of Status even if you have a pending asylum application.
In some cases, you may be eligible to apply for Adjustment of Status while in removal proceedings, particularly if you have an approved immigrant visa petition and an immigrant visa number is immediately available. To apply for Adjustment of Status, you must request that the immigration judge (IJ) terminate or administratively close your removal proceedings.
If you are out of status but are an immediate relative of a U.S. citizen (spouse, unmarried child under 21, or parent), you may still be eligible for Adjustment of Status. However, other family-based and employment-based applicants generally must maintain lawful status to be eligible for Adjustment of Status.
A criminal record does not automatically disqualify you from applying for Adjustment of Status, but it may affect your eligibility. Certain criminal convictions may make you inadmissible to the United States, and you may need to apply for a waiver of inadmissibility to proceed with your Adjustment of Status application.
If you overstayed your visa but are an immediate relative of a U.S. citizen (spouse, unmarried child under 21, or parent), you may still be eligible for Adjustment of Status. Other family-based and employment-based applicants must generally maintain lawful status to be eligible for Adjustment of Status.
If you entered the United States without inspection (EWI), you are generally ineligible for Adjustment of Status. However, certain exceptions may apply, such as if you are an immediate relative of a U.S. citizen and qualify for a waiver of inadmissibility.
If your Adjustment of Status application is based on marriage and you divorce before your application is approved, USCIS may deny your application. If you have already received a conditional Green Card, you will need to file a Form I-751, Petition to Remove Conditions on Residence, to remove the conditions on your Green Card. In case of divorce, you may request a waiver of the joint filing requirement, but you will need to demonstrate that the marriage was entered in good faith.
Yes, you can change your address while your Adjustment of Status application is pending. You must notify USCIS of your new address within ten days of moving by submitting Form AR-11, Alien’s Change of Address Card. It is essential to update your address to ensure you receive all correspondence from USCIS, including appointment notices and decision letters.
If your Adjustment of Status application is based on employment and has been pending for 180 days or more, you may be able to change your employer under certain circumstances. This is known as “job portability.” To change your employer, you must submit a request to USCIS, and your new job must be in the same or a similar occupational classification as your original job.
In family-based Adjustment of Status cases, the U.S. citizen or lawful permanent resident petitioner serves as the sponsor. The sponsor is responsible for filing Form I-864, Affidavit of Support, which demonstrates their financial ability to support the intending immigrant and prevent them from becoming a public charge. The sponsor must meet certain income requirements and agree to provide financial support if necessary.
