FAMILY/EMPLOYMENT BASED ADJUSTMENT OF STATUS
ADJUSTMENT OF STATUS - GENERAL OVERVIEW
One method of obtaining lawful permanent residency is through a qualifying relative who is either a United States Citizen or a Lawful Permanent Resident. United States citizens and lawful permanent residents can help their qualifying foreign relatives in petitioning for lawful permanent residency in the United States and eventually even citizenship. There are different categories of family-based immigration. The category a foreign national falls into depend upon two factors: (1) whether the petitioning relative is a U.S. citizen or lawful permanent resident; and (2) the foreign national’s relationship to the petitioning relative.
There are two categories of unlimited family-based immigration: Immediate Relatives of United States Citizens and Returning Residents. An immediate relative can be a spouse of a United States citizen, widow of a United States citizen, unmarried child under the age of 21 of a United States citizen, or a parent of an adult United States citizen. Returning residents are immigrants who previously resided in the United States with lawful permanent resident status and are returning to live in the United States after residing abroad for more than one year.
There are four preference categories for limited family-based immigration. The first preference category consists of unmarried children of United States citizens who are over the age of 21. The second preference is divided into 2A and 2B. Spouses of lawful permanent residents as well as their unmarried children under the age of 21 fall into the 2A category whereas unmarried sons and daughters of lawful permanent residents who are over the age of 21 fall into 2B category. The third preference consists of married children of United States citizens. The fourth preference category consists of siblings of adult United States citizens.
PROCEDURE IN GENERAL
For an application through either the immediate relative category or one of the preference categories, the United States citizen or lawful permanent resident should first file an I-130 Petition for Alien Relative with the Bureau of U.S. Citizenship & Immigration Services. This form should be accompanied by the proof of the petitioner’s United States immigration status and proof of the relationship between the petitioner and beneficiary. The petitioning United States citizen or lawful permanent resident must prove he or she can support his or her relative 125% above the poverty line. If the United States citizen or lawful permanent resident does not meet this financial criterion, then he or she will need a joint sponsor or their assets will be taken into account.
Upon approval of the I-130 Petition for Alien Relative, the Department of State will determine if an immigrant visa number is available for the beneficiary. Immigrant visas are always available for persons in the immediate relative category. However, immigrants in the preference categories may apply for an immigrant visa overseas once a visa number is available. If the beneficiary of the I-130 Petition for Alien
Relative is in the United States, they may be able to file an I-485 Application to Register Permanent Resident or Adjust Status with the Bureau of U.S. Citizenship & Immigration Services.
If an applicant is outside of the USA and seeking adjudication of his or her Immigrant Visa petition at one of the U.S. Consulates, in most circumstances, the petition will be referred to the U.S. Consulate in the country of the beneficiary’s citizenship or permanent residence at the time when the I-130 was approved. Important to mention that in case of a preference as opposed to immediate relative petition, the consulate will not adjudicate the petition until an immigrant visa becomes immediately available for the beneficiary. An immigrant visa becomes immediately available when the priority date indicated on the I-130 Approval Notice (USCIS form I-797) becomes current. Interested parties may check online whether their priority date is current by visiting the U.S. Department of State Visa Bulletin website. Our Helpful Web Resources page also provides convenient link to the most recent U.S.DOS Visa Bulletin. To utilize the Bulletin tables, one will need to find the relevant visa category and know the applicable priority date for the approved I-130 Petition.
ADJUSTMENT OF STATUS
If the beneficiary of the approved I-130 immigrant petition is in the United States and seeks Adjustment of Status to that of the Legal Permanent Resident, the beneficiary may only do so when his or her petition’s priority becomes current and while the beneficiary is still in a valid nonimmigrant status in the USA. In most cases beneficiary’s failure to maintain a valid nonimmigrant status while in the USA renders him or her ineligible to seek Adjustment of Status in the USA. Again, this rule is not applicable to immediate relatives of the U.S. Citizens, provided that they have entered the USA using legitimate eligible U.S. nonimmigrant visa. For more detailed information about nonimmigrant visas, which allow immediate relatives of U.S. citizens to seek adjustment of status, please visit our Adjustment of Status page.
ADJUSTMENT OF STATUS IN GENERAL
Oftentimes people enter the USA legally as non-immigrants and while here run into a change in their personal situation, which requires them to seek permanent residency from within the USA. Many circumstances may lead to such a situation. A foreign student who graduated from an American institution of higher education and found a job; a spouse of a US citizen, or an asylum recipient are some of the most common examples. The US immigration law commonly refers to the process of petitioning for a Legal Permanent Resident (LPR) status while inside the United States as “adjustment of status”. The Immigration and Nationality Act (INA), the primary U.S. law which governs immigration in the USA, allows for an adjustment of one’s status, if an individual was initially inspected and admitted or paroled into the United States and is capable of satisfying the requirements for permanent residence as prescribed for each particular type of admission.
When the applicant meets the preconditions attached to his or her nonimmigrant status while in the USA, he or she is not required to travel to their country of citizenship to finalize their application for permanent residency in the United States. In contrast, applicants residing outside of the United States must obtain their immigrant visas at the US Consulate covering the geographic area where the applicant lives, or in technical terms, go through a Consular processing. Consular processing refers to the applications for an immigrant visa submitted by the individuals who are either outside of the United States or within the United States but are not eligible for the adjustment of status. An eligible applicant thus obtains an immigrant visa at one of the US consulates in his country of citizenship or permanent residency and then is admitted into the USA as an immigrant. When persons are admitted to the USA as immigrants, they do not need to go through adjustment of status process. In normal circumstances, their Permanent Resident Card, commonly known as a Green Card, will arrive by mail within several weeks of their admission into the USA on an immigrant visa.
IMMIGRANT PETITIONS ON WHICH ADJUSTMENT OF STATUS MAY BE BASED
Family based immigration entails the Petition for Alien Relative (Form I-130) that needs to be filed on behalf of the intending immigrant by an immediate relative who is either a citizen or a legal permanent resident of the United States. When the application for adjustment of status is filed by a spouse or parent of an adult American citizen, the US immigration law recognizes the applicant as an immediate relative. There is a very important benefit of being recognized as an immediate relative. The law does not require immediate relatives to demonstrate, as a precondition to successful adjudication, that they had maintained their nonimmigrant status while in the USA continuously and at all times during their presence in this country.
Employment based immigration entails the Petition for Alien Worker (Form I-140) that needs to be filed on behalf of the intending immigrant by their U.S. based employer. Those individuals who are planning to invest substantial sums of money into a US based enterprise may petition on their own behalf by submitting the Immigrant Petition by Alien Entrepreneur (FormI-526).
Special Classes of Immigrants:
Certain groups of immigrants may be eligible to submit the Petition for Amerasian, Widow(er), and Special Immigrant (Form I360). This petition may also be filed on their behalf. For the list of special immigrant categories and eligibility requirements, please refer to the USCIS website.
In most cases, the adjustment of status based on humanitarian programs does not necessitate a submission of any particular immigrant petition. Such applicants, however, may need to further prove their eligibility for the adjustment of status.
In certain cases, the applicant for permanent residency may file their immigrant petition simultaneously with their Application to Register Permanent Residence or Adjust Status (Form I485). Such process is usually referred to as “concurrent filing”. For example, the immediate relatives of a U.S. citizen are as a rule permitted to file their applications concurrently. In case of immediate visa availability, other classes of applicants may qualify for a concurrent filing. But in the majority of cases an applicant will be required to establish their eligibility for immigrant status prior to filing Form I-485. Such eligibility is established through an immigrant petition approved by the USCIS.
ADJUSTMENT OF STATUS PROCEDURES:
Determination of Eligibility: To begin the process of adjustment of status, the applicant must first determine their eligibility, i.e., whether they fall within a category of people who may, in the eyes of the law, seek adjustment of status. Under normal circumstances, the majority of immigrants become permanent residents through petitions submitted on their behalf by an immediate relative (spouse, or child over the age of 21, when the applicant is an adult; and parents when the applicant is a minor child), family member or employer. Other immigrants gain permanent residency as a result of obtaining an asylee or refugee status in the United States. Several other groups are eligible to seek adjustment of status to that of a permanent resident of the United States.
SUBMITTING THE PETITION FOR ADJUSTMENT OF STATUS:
Once the applicant determines that there is an immigrant petition which, if approved would qualify him or her to apply for adjustment of status, the applicant, as a rule, would need to have the qualifying petitioner submit that immigrant petition on the applicant’s behalf and have it approved by USCIS before any adjustment of status application can be filed. IN other words, approval of such petition serves as a first precondition to any adjustment of status application, so that, except for a DV lottery situation, the US immigration law would not recognize a person as eligible for adjustment of status, unless an immigrant petition on their behalf has been approved by USCIS.
Despite the above, in some circumstances, individuals are allowed to file their adjustment of status application at the same time their family member or employer, as the case may be, files the immigrant visa petition on the applicant’s behalf. The rationale behind such rule is that when an immigrant visa is immediately available to an applicant, and other preconditions for adjustment of status are likely to be met, people should be allowed to file their adjustment of status applications along with the immigrant visa petitions. Such process saves time and allows the applicant to receive some preliminary benefits while awaiting the adjudication of the immigrant petition filed on their behalf. The benefits include employment authorization so that the applicant could be allowed to legally work in the USA and Advance Parole so that the applicant could be allowed to travel outside of the USA while their immigrant visa petition along with adjustment of status application are pending. The benefits will not be available to the applicant if the adjustment of status application with the relevant government fee had not been included with the immigrant visa petition.
There is a sound public policy behind such procedure, namely to facilitate local, compact and pointed processing of both applications during a single interview with an adjudication officer. During such interview at a local USCIS office, both the immigrant petition and the adjustment of status application is adjudicated by the USCIS, thus providing for an administrative procedure which allows for better efficiency and customer service.
Checking Visa Availability:
Before you may file your Adjustment of Status Form I-485, you must check for the availability of an immigrant visas in your class. You may be eligible to file Form I485 only in case of immediate immigrant visa availability. Otherwise, you will have to wait until such a visa becomes available to you and only then file for the adjustment of status. To check your visa availability you need to know (1) the type of immigrant visa that applies to you; (2) the priority date, which appears in the priority date field on the USCIS I-797 Approval Notice. Once you know all this information, you would need to visit USDOS Visa Bulletin page. Scroll down to the applicable visa category and find the priority date on which USDOS works during this current month. If applicable to you priority date is the same or earlier than that indicated in the Visa Bulletin table corresponding to your visa type and geographic area of the world from which you are from, then your visa is current. If not, then you have to wait until your priority becomes current before you can apply for adjustment of status.
By the way of reminder, parents, spouses and minor children of American citizens always have their priority current and need not check the Visa Bulletin. They can apply for adjustment of status regardless of whether they overstayed their immigrant status, provided that they have been admitted into the USA on one of the visas, which allow for adjustment of status, or were paroled into the USA.
Filing Form I-485, Application to Register Permanent Residency or Adjust Status:
Individuals seeking the adjustment of status in the United States are required to file Form I485 with the USCIS. Several categories of immigrants, however, are required to submit a different form than Form I485. For detailed filing instructions, please refer to the USCIS website. The applicant must follow the filing instructions as outlined and submit all the required evidence with their application. The applicant’s failure to follow the filing instructions and/or produce all the required evidence may cause a delay in the adjudication or denial of their application for adjustment of status.
Application Support Center appointment (fingerprints):
Those applying for adjustment of status will be required to attend a biometrics collection appointment at an Application Support Center. The applicant will be notified by mail of the time and date of their appointment, as well as the address of an Application Support Center. The USCIS collects the biometrics information (i.e., fingerprints, photograph, and signature) for the purposes or running the mandatory background checks and the subsequent issuance of a Permanent Resident Card, Employment Authorization Document, or Advance Parole Document/Travel Document.
The USCIS may require the applicant and their dependents included in the Form I-485 to attend an interview regarding their application for adjustment of status. The applicant will be notified by mail of the time and date of the interview, as well as of the address of the USCIS office where the interview is to take place. At the interview, the USCIS officer will ask applicant questions regarding their application for adjustment of status to determine their eligibility for the said adjustment. The applicant must attend all the interviews scheduled by the USCIS. The applicant’s failure to attend a scheduled interview may result in a denial of their application for the reasons of abandonment.
During the interview, the applicant will be asked to present the original documents which were previously submitted as copies in support of the application for adjustment of status. The applicant must present the officer with all the passports and travel documents, as well as Form I94, regardless of their expiration date(s).
Interview attendance is not a general requirement for all adjustment of status applications. The USCIS will decide whether it is necessary for the applicant to have an interview and will notify them accordingly.
The applicant will be notified of the decision on their case in writing. The decision is mailed to the applicant’s address as soon as the USCIS adjudicates their case. The applicant must complete all the required steps as outlined above for the USCIS to issue a decision on their case.
If the application for adjustment of status is approved by the USCIS, the date of the decision is generally regarded as the date of the applicant’s adjustment of status to that of a Legal Permanent Resident. Certain applicants, such as the refugees and humanitarian parolees, will have their date of adjustment coincide with the date of their entry to the United States. Those applicants who were granted asylum in the United States will have their adjustment date set at 1 year before their receipt of the Permanent Legal Resident status.
a. Change of Address:
Applicants seeking adjustment or those whose applications have already been approved by the USCIS are required to notify the agency of a change of address. To submit a change of address online, please refer to the USCIS website.
b. Check My Status:
There are two ways to check on the status of the application filed with USCIS. The applicant or their representative may call the USCIS National Customer Service Center (NCSC) at 1-800-375-5283. In order to obtain the information on each particular case, the applicant or their representative must provide the USCIS representative with the following information: type of application, receipt number, Alien Registration Number, as well as the applicant’s name and date of birth. The applicant or their representative may also inquire about the status of their case by submitting the required information at the “My Case Status” section at the USCIS website.
Appealing a Denial:
In case the USCIS denies your application for adjustment of status, the written decision will outline the applicant’s rights to appeal. Certain decisions cannot be appealed. As a rule, if the applicant has a right to appeal the decision, such an appeal must be filed with the USCIS within 30 days of the date of the denial. The applicant may also have a right to submit a Motion to Reopen or Reconsider. In order to file the appeal, the applicant must fill out Form I290B (Notice of Appeal of Motion) and submit it to the USCIS with an appropriate fee (if applicable) before the deadline contained in the decision.
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