General Requirements

Adjustment of status refers to the procedure for becoming a lawful permanent resident without having to leave the United States. It should be distinguished from the traditional method of gaining permanent residence, which involves applying for an immigrant visa at a consular post abroad.

Adjustment of status is discussed at §245 of the Immigration and Nationality Act (“INA”). According to INA §245(a), the status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:

1. the alien makes an application for such adjustment,
2. the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
3. an immigrant visa is immediately available to him at the time his application is filed.

Inspection and Admission or Parole

Basic eligibility for adjustment of status requires the applicant’s prior inspection and admission or parole into the United States. The USCIS officer must have a “full and fair opportunity” to conduct the inspection before the alien is considered “inspected” An alien who enters illegally or crosses the border without being inspected isected inspected is ineligible.

An alien who presents himself or herself for inspection before a USCIS officer at an airport, border or seaport will be considered “inspected”. “Admission” occurs when the inspecting officer informs the applicant that the applicant is admissible and the applicant is permitted to pass through the port of entry. Generally, the alien’s I-94 and/or the USCIS stamp in the alien’s passport are proof of inspection and admission.

Immediate Availability of an Immigrant Visa

An immigrant visa must be immediately available to the alien at the time his or her application for adjustment is filed.  This means that the priority date for the petition is now current. The Department of State Visa Bulletin shows the priority date for each immigrant category or quota. Spouses of U.S. citizens, parents of U.S. citizens and minor unmarried children of U.S. citizens are non-quota immigrants or are exempt from the quota. If an adjustment application is properly filed at the time that the individual’s visa priority date is current but the priority subsequently retrogresses before the case is adjudicated, the adjustment cannot be completed. However, the applicant will be permitted to remain in the United States until the priority date becomes current again, provided that he or she remains eligible for adjustment.

Statutory Bars to Adjustment of Status

The Immigration and Nationality Act lists several categories of aliens to whom adjustment is legally unavailable, which are discussed below:

Foreign National Crewmen

Those who, at the time of arrival, were serving in any capacity on board a vessel or aircraft or were destined to join a vessel or aircraft in the United States to serve in such a capacity are barred from adjustment of status. Typically D-1 visa holders are crewman, but sometimes C visa holders are considered crewman as well. It is best to have a qualified immigration attorney make this determination.

Transits Without Visas (“TWOV”)

Aliens who are in immediate and continuous transit through the United States to a foreign destination, in accordance with the terms of an agreement entered into between the transportation line and USCIS, are not eligible for adjustment of status.

Aliens Who Entered Under Visa Waivers

An alien (other than an immediate relative-non quota) who was admitted as a nonimmigrant visitor without a visa under section 212(l) [visa waiver for B-1/B-2 admission to Guam] or section 217 [visa waiver program also known as WT visa] is barred from adjustment of status unless considered immediate relative-i.e. spouse or parent of a U.S. citizen.

Aliens Who Have Conditional Residence

Aliens who were admitted for permanent resident status on a conditional basis either as spouses whose marriages are less than 2 years old at the time of admission as conditional residents or as immigrant investors (entrepreneurs), are ineligible for adjustment of status. However, once conditional residence is terminated, the bar is lifted.

K-1 Fiances

Aliens who are admitted on a temporary basis under the K-1 category for fiances 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 United States citizen who filed the petition to classify him or her as a K-1. Marriage to someone other than the petitioning fiancé will not allow adjustment of status.

Unauthorized Employment, Unlawful Status or Failure to Maintain Status

Aliens who have engaged in unauthorized employment, who are no longer in lawful status at the time of filing of the adjustment application,  or who have failed to continuously maintain status since their entry into the United States are barred from adjustment of status. However, this statutory bar does not apply to immediate relatives of United States citizens or certain special immigrants.

Aliens Who Enter Into Marriages During Pendency of Administrative or Judicial Proceedings

Any alien who marries on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto, is barred from adjustment of status unless granted a waiver or permission to adjust status. We have been very successful in having clients granted permanent residence while in deportation or removal proceedings based upon marriage to a citizen.

Criminal Aliens

Certain aliens who have one or more felony convictions either in the U.S. or abroad or two or more misdemeanor convictions may be ineligible to adjust status in the U.S. if the crime is one considered a crime of moral turpitude-generally meaning a theft crime, fraud crime, or serious physical violence crime.  If you have any convictions it is highly recommended that you seek the advice of an experienced immigration attorney before filing any documents with the USCIS.

Adjustment Under INA §245(i)

Aliens in some of the above categories were previously permitted to adjust their status pursuant to INA §245(i) despite their ineligibility (by paying a penalty fee pursuant to that subsection). INA §245(i) expired on April 30, 2001.

This means that eligible aliens had until April 30, 2001 to file an immigrant petition or labor certification application to be eligible to adjust their status in the United States. Under the LIFE Act, INA §245(i) is available to any beneficiary of a bona fide immigrant visa petition (an I-130, I-140, or I-360) or application for labor certification that was filed on or before April 30, 2001. There is also a “physical presence” requirement. Applicants need to prove that they were actually in the United States on the date of enactment (December 21, 2000) in order to be eligible to use INA §245(i).

The INA §245(i) penalty fee is still $1,000USD, and is in addition to any other filing fees levied by USCIS. The $1,000USD fee is paid at the time of filing the Form I-485A, which is submitted along with the standard application for adjustment of status (Form I-485).   If you were the beneficiary of a petition or labor certification filed before May 1, 2001, you may qualify for the benefits of Section 245(i).

Place of Filing

An application for adjustment of status is ordinarily filed with the USCIS district director in the district of the applicant’s residence. However, the USCIS has designated a “lock-box” address for receipt of adjustment of status applications and filing fees. Check the USCIS website for details.

Adjustment of Status is Discretionary

It is important to realize that adjustment of status is considered discretionary. USCIS may still deny an application for adjustment of status even where none of the statutory bars applies.

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, particularly immediate relatives, may be a strong factor favoring adjustment.

Preconceived intent to remain in the U.S. at the time of entry as a nonimmigrant, even though not resulting in fraud or willful misrepresentation, may be a sufficient negative factor to deny adjustment of status. However, immediate relatives of U.S. citizens can overcome such negative factors.

Advance Parole Required to Leave While Adjustment is Pending

An alien may apply for advance parole prior to departing the United States to ensure that his or her application is not deemed abandoned. Advance parole is available for any legitimate personal or business reason, but be careful when filing for advance parole especially if you were previously out of status as a departure could trigger the 3 or 10 year bar.

Notwithstanding the above, on June 1, 1999, USCIS published an interim rule that allows H-1 and L-1 nonimmigrants (and their dependents) to travel outside the United States without abandoning their applications for adjustment of status, making advance parole unnecessary for these aliens. The interim rule was published in 64 FR 29209.

Ability to Work While Adjustment is Pending

An alien who has filed an application for adjustment of status may apply for an employment authorization in increments not exceeding one year during the period the application is pending (including any period when an administrative appeal or judicial review is pending.) This is an unrestricted employment authorization that permits the alien to work for any employer.

The alien may continue working pursuant to his or her existing nonimmigrant status, if such status permits employment. It is advisable to obtain an unrestricted employment authorization in most cases.