An Adjustment of Status (AOS) is an application filed by an alien who is physically in the United States who wants to adjust his or her non-immigrant status to immigrant status, i.e. permanent resident status, without having to return to their home country. The Immigration and Nationality Act (INA) permits this change of an individual’s immigration status, if the individual was inspected, admitted, or paroled into the United States and meet all of the required qualifications for a green card (permanent residence). In past cases of adjustment of status for employment-based immigration, the USCIS allowed an alien to file an I-485 adjustment of status application only after his or her immigration petition was approved.
However, effective July 31, 2002, the USCIS published a new rule allowing the concurrent filing of an I-485, adjustment of status application with an I-140, immigration petition (typically, EB-1, and EB-2 petitions) if visa numbers are available to the beneficiaries at the time of filing.
An alien who is outside of the United States may not apply for an adjustment of status. Instead, these individuals must go through Consular Processing at a U.S. Consulate abroad.In another word, if the alien does not reside in the United States; he/she cannot apply for adjustment of status in the U.S. and must go through immigrant visa processing at a U.S. consulate abroad instead.
Applying for adjustment of status signifies that the alien has reached the final step in getting a Green Card. Once the application is approved, the alien gains permanent resident status in the United States. In addition, there are three major benefits to applying for an I-485: while an I-485 application is pending, an alien may simultaneously apply for 1) Advance Parole, and 2) an EAD Work Permit and the alien has a legal stay in the US and does not need to maintain their non-immigrant status.
An Adjustment of Status is an application filed by an alien who is physically in the United States and who wants to change his or her non-immigrant status to immigrant or permanent resident status. To file for adjustment of status, the immigrant must not only be eligible to adjust, but must also not have any bars from applying for adjustment.
To be eligible for adjustment of status, an alien must meet the following criteria:
- The alien must be physically present in the United States. If the alien does not reside in the United States, he/she cannot adjust status in the U.S. and must go through immigrant visa processing at a U.S. consulate abroad instead.
- The alien’s immigration petition must have been approved. This criterion is only applicable to those who file a family-based immigration petition (Form I-130). However, an alien who is the immediate relative of a U.S. citizen may file an adjustment of status application along with the immigration petition (Form I-130) filed by the U.S. citizen on his or her behalf.
In addition to this, an I-485 adjustment of status application can be filed concurrently with an I-140 employment-based immigration petition (EB-1 andEB-2), if visa numbers are available.
Petitions are subject to the numerical annual quota for immigrant visas. For these aliens, they may only file their adjustment of status applications once the cut-off dates published monthly by the State Department pass the priority dates of their initial immigration petition or the immigrant visa number for the category is current.
The alien must not have entered the United States illegally. Aliens must have been inspected and lawfully admitted into the U.S. The USCIS considers that you have been “inspected” when you present yourself to an immigration officer at a U.S. port of entry. You are considered admitted when an officer informs you of such and you are allowed to enter the U.S. As a rule, your I-94 and/or the Immigration and Naturalization Stamp in your passport is an indication that you have been admitted legally.
No change in circumstances. A change in circumstances could detrimentally alter an alien’s eligibility for adjustment of status.
Aliens that meet the above listed criteria are not automatically eligible for adjustment of status. Aliens will not be able to adjust their status in the U.S. if they are statutorily bared from adjustment. Statutory bars to adjustment include:
Unauthorized Employment, Unlawful Status or Failure to Maintain Status — Aliens who have engaged in unauthorized employment, or who were not in lawful status at the time of filing the adjustment application, or who have failed to continuously maintain status for even a single day since their entry into the United States are barred from adjustment of status.
Exceptions — This rule has several exceptions, which include:
- Immediate relatives (spouses, parents and unmarried children under 21-years of age) of U.S. citizens are still eligible to adjust their status;
- Violation of status that is in effect a “technical violation” which is not due to the alien’s own fault. These “technical violations” include an individual or organization’s failure to act on behalf of the alien where such inaction directly contributed to the violation of the alien’s legal status; the USCIS’ failure to act in a timely manner on an application properly filed by the alien; or the alien’s physical disability to request a legal status on a timely basis;
- Employment-based immigrants who have been out of status no more than 180 days in the U.S. are still eligible to adjust; or
- The 245(i) exception is available for those that qualify.
Exchange visitors with J visas. J-1 or J-2 non-immigrant status holders are subject to the two-year foreign residence requirement. They will be barred from adjustment if they have not completed their two-year foreign residence requirement or if they have not been granted a waiver of it.
Fiancés with K visas. Aliens who are admitted under the K-1 category for fiancés may only be adjusted to permanent residence on a conditional basis, and only where the adjustment is a result of the K-1’s marriage to the sponsoring US citizen within ninety days of entry into the US. In other words, if the alien marries a U.S. citizen other than the one who filed the K-1 petition, the alien is barred from adjustment of status.
Public charge. Aliens who wish to adjust their status must be able to prove that they or some sponsoring individual (such as a spouse) have the financial means of supporting themselves. Therefore, unless an alien can show that he or she will not be a public charge, they are not eligible to adjust their status.
Aliens who are in removal proceedings and marry a U.S. citizen or permanent resident. The default rule in these instances is that if the marriage was not entered into in good faith and as a result, the alien is ineligible for adjustment of status. However, this bar can be overcome if the alien can show that the marriage was entered into in good faith and not for the purpose of obtaining permanent residence by clear and convincing evidence.
Aliens who entered under visa waivers. Aliens who are tourists or business visitors admitted in the Visa Waiver Pilot Program under section 217 of the Immigration and Nationality Act, or under the Guam Visa Waiver Pilot Program under section 212(1) of the Act are barred from adjustment of status. However, this bar does not apply to persons seeking adjustments as spouses or unmarried minor children or parents of U.S. citizens. Furthermore, the 245(i) exception is also available for those that qualify.
Crewmembers with D visas — Foreign national crewmen and crewwomen who were serving on board a vessel or aircraft at the time of their arrival are barred from adjustment of status. However, the 245(i) exception is available for those that qualify.
Transits without a visa — Aliens in transit without a visa, traveling through the U.S. to another country, are barred from adjustment of status. However, the 245(i) exception is available for those that qualify.
Adjustment of status is discretionary. It is important to note that adjustment of status is up to the discretion of the USCIS officer handling each case. Even if an alien is eligible for adjustment and is not blocked by any of the statutory bars listed above, the USCIS may still deny an application for adjustment of status. In practice, adjustment of status will be granted where the alien is statutorily eligible and there are no “Negative Factors.” When such negative factors exist, the factors will be weighed to determine whether adjustment will be granted. Close family relatives and immediate relatives in the US, may be a strong factor favoring adjustment. The preconceived intent to remain in the U.S. at the time of entry as a non-immigrant, even if this intent does not constitute fraud or willful misrepresentation, may be a sufficient negative factor to deny an adjustment of status application. However, immediate relatives of U.S. citizens can generally overcome such negative factors.