Adjustment of Status

Adjustment of Status refers to the procedure by which an alien can change his/her present status to that of a lawful permanent resident without having to leave the United States. This should be distinguished from applying for an immigrant visa at a consular post abroad, when the person is residing outside the US. The provision for Adjustment of Status was created by Congress as a convenience to foreign nationals. Prior to this provision, individuals seeking permanent residency had to return to their country of origin and apply overseas at a U.S. Consulate and then re-enter the U.S. with an immigrant visa.

Pursuant to §245 of the Immigration and Nationality Act (INA), the status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, at his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:

1. the alien makes an application for such adjustment,
2. the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
3. an immigrant visa is immediately available to him at the time his application is filed.

 It is important to keep in mind that Adjustment of Status is the process one undergoes AFTER establishing eligibility for permanent residency. It is only available after a foreign national has demonstrated that he/she qualifies for permanent residency based on one of the permanent residency categories. This is usually through a family relationship or an employer/employee relationship. Thus, individuals who want to apply for a green card and mistakenly apply for this procedure without establishing eligibility will have their adjustment application denied. Understanding this critical difference will save a lot of aggravation and a significant amount of time.

To be eligible for Adjustment of Status, the applicant must meet certain requirements such as:

1. he/she must not have entered the country illegally. He/she must have been ‘admitted’ to the United States through a legal point of entry.
2. he/she must not have been admitted as a ‘crewman’, (either on board a vessel or aircraft), in transit through the U.S. from another country or as an ‘Exchange visitor’.
3. he/she must not have engaged in unauthorized employment while in the U.S.
4. he/she must be eligible for immigration, i.e. he/she must be the immediate relative of a U.S. citizen or of a lawful permanent resident of the U.S., or eligible under one of the categories of employment based immigration.
5. an immigrant visa must be immediately available to the alien, i.e. his/her priority date must be current. See here for new rules that will allow an Adjustment of Status to be filed even if the priority date is not current.
6. the alien must be admissible to the U.S. as a permanent resident and must fall under any excludable ground. There are nine major categories that can be found excludable. These are:

1. health-related grounds
2. criminal-related grounds
3. security-related grounds
4. public charge
5. labor certification
6. illegal entrants and immigration violators
7. documentation requirements
8. ineligible for citizenship

There are waivers available for certain grounds listed above and an attorney should be consulted if an applicant feels that this may apply to him/her.

Unauthorized Employment

Aliens who have engaged in unauthorized employment, who are not in lawful status at the time of filing of the adjustment application or who have failed to continuously maintain status since their entry into the United States, are barred from adjustment of status. These two violations are quite common and negative consequences may come up years later when applying for a Green Card. However, this statutory bar does not apply to immediate relatives of U.S. citizens or certain special immigrants.

APPLICATION PROCESS

There are two forms that must be filled in by each applicant and filed with the USCIS office that has jurisdiction over the place where the alien will reside. The forms are:

1. Form I-485  –  ‘Application for Permanent Residence’
2. Form G-325A  –   ‘Biographical Information Form’

In addition to all the above, the following documents must also be submitted to the INS.

1. Certified copy of his/her Birth Certificate.

1. If employed, letter from employer showing employment is of a permanent nature.
2. If not employed, an Affidavit of Support (Form I-864) from a responsible person in the U.S. confirming the credibility of the alien.
3. If application is being filed along with his/her spouse, Marriage Certificate and proof that all previous marriages of both parties have been legally ended.
4. Two color photographs taken within thirty days. The photographs must have a white background and the facial image must be about 1 inch from chin to the top of the hairline and should be in the ¾ frontal view with the right ear showing.
5. Filing fee of $1070 per adult application (which includes the fee for Employment Authorization and Advance Parole).

Authorization for Employment

An alien who has filed an application for adjustment of status may apply for employment authorization during the period the application is pending (including any period when an administrative appeal or judicial review is pending.) This is an unrestricted employment authorization that permits the alien to work for any employer.

Traveling Abroad while Adjustment for Status is pending

If, a person is waiting for adjustment of his/her status, and needs to travel out of the United States for any reason, he/she must apply for permission prior to departing the United States to ensure that his or her application is not deemed abandoned. This is known as Advance Parole and is available for any legitimate personal or business reason.

Notwithstanding the above, on June 1, 1999, the INS published an interim rule that allows H-1 and L-1 non-immigrants (and their dependents) to travel outside the United States without abandoning their applications for adjustment of status, making advance parole unnecessary for these aliens. The interim rule was published in 64 FR 29209.

The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between Jethmalani & Nallaseth and the viewer.