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Adjustment of Status

Adjustment of status is a process that permits certain people in the U.S. to apply for lawful permanent resident (“green card”) status without having to go outside the U.S. to obtain an immigrant visa/permanent resident status (consular processing). Not everyone qualifies for Adjustment of Status. Those who do must apply with an office of the USCIS and all further processing will be done by that agency.

Who is eligible for Adjustment of Status?

A person who is already in the United States in valid nonimmigrant status and if one or more of the following categories apply to you:

  1. Family Member:

You are the spouse, parent, unmarried child under age 21, the unmarried son or daughter over age 21, the married son or daughter, or the brother or sister of a United States citizen and have a visa petition approved in your behalf.

You are the spouse or unmarried son or daughter of any age of a lawful permanent resident and you have a family-based visa petition approved in your behalf.

For more information please refer to the green card by family section.

  1. Employment:

You are an alien who has an approved I-140 Immigrant Visa Petition filed on your behalf by a U.S. employer. For more information please refer to the green card by employment section.

  1. Fiance(e):

You were a fianc? who was admitted to the United States on a K-1 visa and then married the U.S. citizen who applied for the K-1 visa for you. (If you married the U.S. citizen but not within the 90-day time limit, your spouse must file USCIS Form I-130, Petition for Alien Relative). Your unmarried, minor children are also eligible for adjustment of status. If you did not marry the U.S. citizen who filed the K-1 petition in your behalf, or if you married another U.S. citizen or lawful permanent resident, you are not eligible to adjust status in the U.S.

  1. Asylee:

You are an asylee or refugee who has been in the United States for at least one year after being granted asylum or refugee status and still qualify for asylum or refugee status.

  1. Diversity Visa:

You received notice from the Department of State that you have won a visa in the Diversity Visa Lottery.

  1. Cuban Citizen:

You are a Cuban citizen or native who has been in the U.S. for at least one year after being inspected, admitted, or paroled into the U.S. Your spouse and children who are residing with you in the U.S. may also be eligible for adjustment of status.

  1. U.S. Resident Since Before 01/01/72:

You have been a continuous resident of the United States since before January 1, 1972. See 8 CFR 249.2(a), under “Jurisdiction.”
Other Nationality-Based Programs

  1. Parent’s LPR Status

Your parent became a lawful permanent resident after you were born. You may be eligible to receive following-to-join benefits if you are the unmarried child under age 21 of the lawful permanent resident. In these cases, you may apply for adjustment of status at the same time that your parent applies for following-to-join benefits for you.

  1. Spouse’s LPR Status

Your spouse became a lawful permanent resident after you were married. You may be eligible to receive following-to-join benefits. In these cases, you may apply for adjustment of status at the same time that your spouse applies for following-to-join benefits for you.

The following classes of people are not eligible for adjustment of status:

  • You entered the U.S. while you were in transit to another country without obtaining a visa.
  • You entered the U.S. while you were a nonimmigrant crewman.
  • You were not admitted or paroled into the United States after being inspected by a U.S. Immigration inspector.

  • You are employed in the United States without USCIS authorization or you are no longer legally in the country (except through no fault of your own or for some technical reason). This rule does not apply to you if: You are the immediate relative of a U.S. citizen (parent, spouse, or unmarried child under 21 years old).

  • Certain foreign medical graduates, international organization employees and family members.
  • You are a J-1 or J-2 exchange visitor who must comply with the two-year foreign residence requirement, and you have not met or been granted a waiver for this requirement.

  • You have an A (diplomatic status), E (treaty trader or investor), or G (representative to international organization) nonimmigrant status, or have an occupation that would allow you have this status. This rule will not apply to you if you complete USCIS Form I-508 (I-508F for French nationals) to waive diplomatic rights, privileges and immunities. If you are an A or G nonimmigrant, you must also submit USCIS Form I-566.

  • You were admitted to Guam as a visitor under the Guam Visa Waiver Program. (This does not apply to immediate relatives.)
  • You were admitted into the United States as a visitor under the Visa Waiver Program. (This rule does not apply to you if you are the immediate relative of a U.S. citizen (parent, spouse, or unmarried child under 21).)
  • You are already a conditional permanent resident.
  • You were admitted as a K-1 fianc? but did not marry the U.S. citizen who filed the petition for you. Or, you were admitted as the K-2 child of a fianc? and your parent did not marry the U.S. citizen who filed the petition for you.

Important information regarding visa numbers and adjustment of status:

If you are a Family or Employment based applicant, you must have an immigrant visa number available from the State Department unless you are in a category that is exempt from numerical limitations. Immediate relatives of U.S. citizens are exempt from this requirement because visas are always available in this category. Immediate relatives of U.S. citizens are parents, spouses, and unmarried children under 21. Other immigrant categories that are exempt from numerical limitations and do not need a visa number include special immigrant juvenile and special immigrant military petitions.

For the unmarried son or daughter (over 21 years of age) of a US Citizen, brother or sister of a US Citizen, or the spouse or children of lawful permanent residents, visa numbers are limited by law every year. This means that even if the USCIS approves an immigrant visa petition for you, there may not be a visa number available. In some cases, several years could pass between the time the USCIS approves your immigrant visa petition and the State Department gives you an immigrant visa number.

There are huge backlogs in the category for asylees and refugees. In these types of cases it may take 8-10 years for a visa to become available.

Filing Procedures

When a person’s visa is available, he/she applies for adjustment of status by filing the appropriate forms, filing fee and required supporting documents with the USCIS Regional Service Center designated for the processing of these types of applications. Some of the supporting documents include: results of a medical examination, copy of the applicant’s passport and proof of lawful entry to the U.S. (if any), and birth certificate. Family based petitions require evidence of the familial relationships and Affidavits of Support. Most employment based petitions require evidence of a permanent full-time job offer and evidence of the employer’s ability to pay the wage. Applications based upon a person being 245(i) eligible require the I-485, Supplement A and $1,000 penalty fee.

If the applicant wishes to work or travel abroad while the adjustment of status application is pending, additional forms must be filed:

Form I-765 Application for Employment Authorization

Form I-131 Application for Advance Parole

These applications can be filed concurrently with the filing of the Application for Adjustment of Status or at anytime while the Application is pending with the USCIS. You will need to file the appropriate filing fee and supporting documentation listed on the form’s instructions.

What happens after the Application for Adjustment of Status is filed?

Not all adjustment of status applicants are interviewed, although the law provides that any adjustment applicant may be interviewed. Interviews are always conducted in marriage cases, but are less frequent in other family relationships. Interviews are quite rare in employment-based cases.

In some cases, the USCIS will issue Requests for Evidence. These requests are usually made when any of the required documents are not submitted. The requests for evidence allow a reasonable of time by which to respond; however, if a request is not responded to the application will be denied.

After approval for adjustment of status, it takes some months before the actual green card is obtained. If the approval follows an interview, the USCIS will stamp the applicant’s passport with an indication that they are a U.S. permanent resident. If there is no interview, the applicant will receive a notice that the application has been approved, which they can take to a local USCIS office and obtain the stamp. A few months later, they will receive the green card.