Adjustment of Status – Introduction
Basic Requirements for Adjustment of Status
Under INA § 245, an individual present within the U.S. may adjust his/her status to that of a lawful permanent resident (i.e. green card) without leaving the country by filing an application with USCIS. This process, known as Adjustment of Status (AOS), is generally the final step in the permanent resident process for many employment and family-based green card applicants.
1. Basic Qualifications:
To qualify for Adjustment of Status, an individual must:
a. Have been inspected and either admitted to or paroled into the U.S.
b. Be eligible to receive an immigrant visa (i.e. have an approved immigrant visa petition).
c. Not be inadmissible to the United States under INA § 212 (a) or has received a waiver.
d. Have an immigrant visa immediately available at the time of filing of the application. See Immigrant Numerical Control System.
INA § 245; 8 C.F.R. § 245.1; AFM § 23.5 (b).
2. History of Adjustment of Status:
Previously, individuals who sought to adjust their status to that of lawful permanent residence were required to leave the country, obtain an immigrant visa, and seek reentry to the U.S. as immigrants (i.e. Immigrant Visa Processing). In 1935, the legacy INS took steps to ameliorate this process and began to pre-exam green card applicants in the U.S. prior to the issuance of an immigrant visa at a U.S. consulate in Canada.
In 1952, Congress enacted INA § 245, which permitted individuals to complete the green card process from within the U.S. and avoid applying for an immigrant visa at a U.S. consulate. Although AOS was originally envisioned as a rare exception to the general practice of requiring an immigrant visa through a U.S. consulate, more individuals now gain permanent residence through Adjustment Of Status than through Immigrant Visa Processing. AFM § 23.5 (a).
3. Individuals Restricted from filing for Adjustment of Status:
Due to the manner in which they enter the U.S., or based on their actions after entering the U.S., the following individuals are not permitted to file for AOS (unless they qualify for an exception, e.g. under INA § 245 (i) or otherwise):
a. Individuals who entered the United States in transit without a visa (TWOV).
b. Individuals serving on board a vessel or aircraft (D-1 visas).
c. Individuals who were not admitted or paroled following inspection by a U.S. immigration officer.
d. Individuals who were employed in the U.S. without authorization prior to filing their AOS application. Certain exceptions apply, e.g. for Immediate Relatives.
e. Individuals who were not in lawful immigration status on the date of filing their AOS application. Certain exceptions apply, e.g. for Immediate Relatives.
f. Individuals who failed to maintain continuously lawful immigration status since entry into the United States. Certain exceptions apply, e.g. for Immediate Relatives.
g. Individuals who entered the U.S. under the Visa Waiver Program - except for Immediate Relatives.
h. Individuals who are filing an employment-based immigrant visa petition and who are not maintaining lawful nonimmigrant status at the time of filing their AOS application.
i. Individuals who were ever employed in the U.S. without authorization or who violated the terms of their nonimmigrant visas. Certain exceptions apply, e.g. for Immediate Relatives.
4. EB-1, EB-2, EB-3 & Certain EB-4 Applicants Excused from Some AOS Restrictions:
Individuals applying for green cards under the EB-1, EB-2, EB-3 and EB-4 (religious workers only) classifications may be excused from the following bars to AOS:
a. Engaging in unauthorized employment prior to filing for AOS, being in unlawful immigration status when filing for AOS, or failing to maintain lawful status since entry.
b. Not being in a lawful nonimmigrant status.
c. Engaging in unauthorized employment, or violating the terms of a nonimmigrant visa.
To remain eligible under this provision, individuals must not have engaged in any of the following activities for more than 180 days since their last lawful entry to the U.S.:
a. Failing to maintain, continuously, a lawful status;
b. Engaging in unauthorized employment; or
c. Violating the terms and conditions of admission to the U.S.
INA § 245 (k). See also Neufeld Memo (July 14, 2008).
5. Individuals Ineligible for Adjustment of Status:
The following individuals are not eligible to file for AOS:
a. Employment-based green card applicants who have not received a Labor Certification (if required).
b. Individuals subject to the J-1 visa two-year home residency requirement unless fulfilled or a waiver has been issued.
c. Individuals under A, E or G visa status unless a waiver is submitted.
d. Family-based green card applicants who do not possess valid I-130 immigrant petitions.
e. Conditional-status lawful permanent residents.
f. Individuals under K-1 or K-3 visa status unless the AOS application is based on marriage to the original U.S. citizen petitioner. Also, K-1 fiance(e) visa holders must marry within 90 days of entering the U.S.
g. Individuals under S visa status unless the AOS application is filed pursuant to the request of a law enforcement authority.
h. Individuals seeking to file for AOS based on marriage while the applicant is in exclusion, deportation, or removal proceedings.
6. USCIS’ Exercise of Discretion:
Under the INA, the approval of an AOS application is not only dependent on meeting the statutory requirements for AOS, but the applicant must also demonstrate that his/her application merits a favorable exercise of the government’s discretion. INA § 245 (a); AFM § 23.2 (d).
In exercising discretion, the adjudicator will take into account all known positive (favorable) factors and negative (unfavorable) factors. Positive factors may include the unification of the family; meeting the needs of American businesses; or humanitarian factors. AFM § 23.2 (d). A preconceived intent to remain permanently in the U.S. when entering under a nonimmigrant visa classification is frequently considered a negative factor. However, this negative factor may be overcome if the AOS application is based on marriage to a U.S. citizen.
7. Blog Articles:
8. References:
- INA § 245
- 8 C.F.R. § 245
- USCIS Memo - AOS & Retrogressed Visa Numbers 12-2010
- USCIS - Neufeld Memo 07-14-08
- USCIS Notice - Changes to AOS Vaccination Requirements 07-28-08
- USCIS Press Release - Q&A Changes to AOS Vaccinations 07-2008
Revised Feb. 21, 2011