Adjustment of Status
Adjustment of Status means changing a non-citizen’s immigration status from one visa status to another visa status. The most common reason for Adjustment of Status is when one applies to become a lawful permanent resident. The applicant must be in the United States (U.S.) when applying for adjustment of status with U.S. Citizenship and Immigration Services (USCIS).
- The applicant must have been inspected and admitted or paroled into the U.S.
- The applicant has an approved self-petition pursuant to the Violence against Women’s Act (VAWA).
- The applicant has an approvable or approved I-130 Petition for Alien Relative and an immigrant visa is available. (Family-Based Lawful Permanent Resident)
- The applicant has an approved I-140 Petition for Alien Worker and an immigrant visa is available. (Employment-Based Lawful Permanent Resident)
- The applicant has been an “asylee” for one year. (Applicant with an approved Asylum Application.)
- The applicant is admissible into the U.S. “Admissible” means no criminal, public charge, health, or immigration violations in her/his record.
Statutory Bars to Adjustment of Status
The Immigration and Nationality Act (INA) Section 245(c) lists several categories of non-immigrants who are ineligible for Adjustment of Status:
- Foreign National Crewmen (C-visa, D-visa)
- Those who have “Transits without Visas (TWOV).” These are people who are in immediate and continuous transit through the U.S. to another foreign destination.
- Those who were granted “Conditional Lawful Residence” are ineligible until the conditional residence is terminated.
- Those who entered the U.S. with K-1 Fiancé Visas can only adjust their status to conditional lawful permanent residency if it is the result of an approved I-130 Petition for Alien Relative submitted by the U.S. citizen who initially filed for the person’s K-1 Fiancé Visa with the Department of State and with whom they subsequently married.
- Those who worked without an Employment Authorization Document while in the U.S. before filing for Adjustment of Status.
- Those (except immediate relatives) who are not in legal immigration status.
- Those applicants, other than immediate relatives (See Family-Based Lawful Permanent Resident for definition of “immediate relatives.”), who were admitted into the U.S. with a Visa Waiver for B-1/B-2 Visas.
Exception to the Bars to Adjustment under INA Section 245(i)
Certain Adjustment of Status applicants may overcome some of the bars to adjustment if there was an I-130 Petition for Alien Relative, I-140 Petition for Alien Worker, or Labor Certification filed on or before April 30, 2001. Additionally, the applicant had to be physically present in the U.S. on or before December 21, 2000 (the date of enactment of the Act) to qualify under Section 245(i). This provision is covered by the Legal Immigration Family Equity (LIFE) Act of 2000.
This means that with an additional $1,000 Section 245(i) fee, the applicants who qualify under the LIFE Act, can apply for Adjustment of Status.
Form and Place of Filing
The form to be submitted is the I-485, Adjustment of Status application. This form, together with the required supporting evidence, must be filed at the regional service center of the applicant’s residence.
While an Adjustment of Status is pending with the USCIS, the applicant cannot travel outside of the U.S. without an “Advance Parole.” The government will consider the Adjustment of Status abandoned and, therefore, the applicant will not be able to enter the U.S. to continue the adjustment process.
An Adjustment of Status applicant who has a legitimate personal or business reason can submit an I-131, Application for Travel Document, in order to travel outside the U.S. This application can be submitted together with the Form I-485 if the applicant anticipates that travel will be necessary.
Employment Authorization Document (EAD)
Along with an I-485, Adjustment of Status application, an applicant can also submit an I-756, Application for Employment Authorization, in order to legally work in the United States during the pendency of the Adjustment of Status application.
Once the USCIS approves the I-765, and the applicant receives their EAD, s/he can go and apply for a Social Security Card with the Social Security Administration to legally work in the U.S. Additionally, for many states, the applicant can also apply for a valid driver’s license.
Note: It is highly advisable that when applying for Adjustment of Status, Advance Parole and/or EAD to consult an Immigration Attorney.