Adjustment of Status within the United States
Adjustment of Status is the process by which an eligible foreign national already in the United States can apply for permanent residence without having to return to their home country to obtain a visa through consular processing. Adjustment of status refers to the change of the foreign national’s legal status from a non-immigrant (temporary) category to an immigrant (permanent) category.
Generally, to be eligible to file for adjustment of status within the United States, a foreign national must have an immigrant petition filed on their behalf either by a US citizen (USC) or Legal Permanent Resident (LPR) qualifying relative (USCIS Form I-130 Petition for Alien Relative) or employer (USCIS Form I-140 Immigrant Petition for Alien Worker). Exceptions exist for self-petitioning Amerasian, Widow(ers), special immigrant categories such as refugees or asylees, and humanitarian visas. In addition, the beneficiary of the green card application must have been inspected, admitted, or paroled into the United States to qualify for adjustment of status within the United States, except in cases of 245i.
Note: Immigrants who entered the United States on a K-1 fiancé visa do not need to have Form I-130 submitted on their behalf.
Individuals who entered the United States without inspection (unlawfully) but are eligible for 245i under the Immigration and Nationality Act can adjust their status within the United States if they have a qualifying relative or employer interested in petitioning for them.
What is 245i?
If you are in unlawful immigration status because you entered the United States without inspection (illegally) or remained in the United States past the expiration of your lawful admission, and you have a qualifying relative or employer interested in filing your immigrant petition and you are:
- The beneficiary of a visa petition filed on or before January 14, 1998
- The beneficiary of a visa petition filed on or after January 15, 1998 and on or before April 30, 2001
- The beneficiary of an application for labor certification filed on or before January 14, 1998
- The beneficiary of an application for labor certification filed on or after January 15, 1998 and on or before April 30, 2001
You may be eligible to apply for adjustment of status within the United States. If items b) or d) apply to you, you must also submit documented evidence demonstrating your physical presence in the United States on December 21, 2000.
Individuals, who have been convicted of certain crimes (such as crimes of moral turpitude), have been detained, or have been in removal proceedings are generally inadmissible and cannot adjust status within the United States. These individuals must obtain a waiver of inadmissibility if this option is available to them or abide by any bars that have been imposed on them and apply for permanent residence at a U.S. Consulate or embassy in their home country.
Individuals residing abroad must apply for a visa to enter the United States and then obtain permanent residence through a process known as consular processing. Consular processing can take anywhere from 8-12 months depending on the country of origin and other factors. This time frame does not take into account the time it may take to process a waiver of inadmissibility.
Applying at a USCIS LockBox
The following immigrant visa categories allow an individual to adjust their status within the United States provided the beneficiary was inspected, admitted, or paroled upon entry to the United States, unless eligible for 245i or exempted through a special immigrant category.
A foreign national may not travel internationally while their application for permanent residence is pending with USCIS. The beneficiary of an application for permanent residence may only travel internationally once they receive their advance parole document by submitting USCIS Form I-131 Application for Travel Document otherwise their application for permanent residence will be considered abandoned.
Foreign nationals applying for permanent residence through consular processing are free to travel internationally.
Family Based Immigrant Petitions
A foreign national may adjust their status to permanent residence within the United States through a qualifying relative that is a United States citizen. In order to do so, the relative will need to file USCIS Form I-130 Petition for Alien Relative and Form I-864 Affidavit of Support, demonstrating that they meet the income guidelines required to sponsor the immigrant. For more information on the affidavit of support and income guidelines please click here. The beneficiary of the petition can file USCIS Form I-485 Application for Permanent Residence at the same time as the Form I-130 is filed by the Petitioner. The beneficiary will also need to file USCIS Form I-765 Application for Employment Authorization and Form I-131 Application for Travel Document.
Petitioner’s submitting the I-130 petition for their foreign spouses will be required to attend an interview along with their spouse to demonstrate their bona fide relationship.
A legal permanent resident can also petition for certain relatives; however the beneficiary will need to wait until their priority date becomes current on the Visa Bulletin published monthly by the Department of State in order to file USCIS Form I-485 Application to Register Permanent Residence.
Employment Based Immigrant Petitions
In order for a foreign national to obtain permanent residence through employment, the U.S. employer must file USCIS Form I-140, Petition for Alien Worker, on their behalf. Investors, entrepreneurs, highly skilled workers, foreign nationals demonstrating extraordinary ability, religious workers, L-1 Intracompany Transferee’s, recipients of national interest waivers, etc can obtain permanent residence through an employer’s petition. Investors and entrepreneurs may also file USCIS Form I-526, Immigrant Petition by Alien Entrepreneur on their own behalf.
Special Classes of Immigrants
Certain immigrants are eligible to self-petition themselves by filing USCIS Form I-360, Petition for Amerasian, Widow(er), and Special Immigrant under the Violence Against Women Act and other provisions. For more information please view the Form I-360 instructions.
Humanitarian programs for asylees and refugees do not require an underlying petition, however individuals must meet additional requirements before applying for adjustment of status.
Note: An affidavit of support is generally not required for employment based petitions, special immigrant classes, and humanitarian classifications
Adjustment of Status Timeline for Spouses of U.S. Citizens from Receipt Date:
The following timelines are intended to be projections only based on our experience dealing with such applications. Actual processing times cannot be guaranteed due to multiple factors that must be considered such as complexities surrounding each case, the field office with jurisdiction over interview scheduling, joint sponsor issues, and delays arising from request for evidence responses.
Generally the parties can expect the following to occur from the date of USCIS receives the I-130/485 petitions:
- Within approximately 2 weeks the parties will receive the receipt notices associated with each case containing the case number for each application;
- Within 3 weeks from the receipt date, the parties will receive the beneficiary’s biometrics appointment notice. The beneficiary will complete biometrics; their fingerprints, photograph, and signature will be recorded;
- Within approximately 60-90 days from the receipt date, the parties will receive the beneficiary’s employment authorization/travel document. At this point, the beneficiary is free to travel internationally but must return to attend their I-485 initial interview. The beneficiary can obtain their social security number with the SSA and driver’s license with the DMV once they receive their EAD card;
- Within 90 days the parties will receive their I-485 initial interview appointment notice. The parties should consult an attorney or read the instructions on their I-485 initial interview appointment notice very carefully to understand what documents needed to be presented at the time of the interview. These documents include but are not limited to original biographical documents (birth certificates, marriage certificate, divorce decrees, passports, visas, etc) and documented evidence ensuring that the marriage was not entered to gain an immigration benefit such as evidence of cohabitation, joint ownership of assets, joint responsibility for liabilities, and commingling of finances (photographs of the couple throughout the relationship, joint bank account statements, joint insurances, joint lease agreement as evidence of cohabitation, joint loans, joint property documents, birth certificates of children born to the marriage, etc.);
Note: US Citizen children petitioning for their parents and vice versa will not be scheduled to attend an interview.
Supporting Documents Required to File Form I-485 Application for Permanent Residence Based on Family Relationship
- American Style Passport pictures - 5 for Beneficiary; 2 for Petitioner/Sponsor;
- Copy of the beneficiary and petitioner’s marriage certificate (if based on marriage);
- Copy(ies) of all previous divorce judgments (if any of the parties were married previously);
- Copies of birth certificates of both parties;
- Copy of the beneficiary’s passport, visa page, and I-94 (to demonstrate lawful legal entry into the U.S.) unless 245i eligible;
- Copy of the petitioner’s passport or naturalization certificate;
- Copy of the beneficiary’s employment authorization card (if applicable);
- Medical Form I-693 filled by USCIS approved physician;
I-130/485 Filing Fees
- Personal check, cashier’s check, or money order for $1,490.00 made payable to “Department of Homeland Security” for USCIS Form I-130 and I-485 filing fees;
- If the beneficiary entered the US on a K-1 Visa the filing fee for Form I-485 is $1,070 payable by personal check, cashier’s check, or money order to “Department of Homeland Security”;
Supporting Documents for Affidavit of Support
The following documents are necessary to demonstrate that the U.S. petitioner/sponsor possesses the sufficient income to sponsor the intending immigrant(s) based on their household size. The affidavit of support ensures that the intending immigrant will not become a public charge:
- Copies of the petitioner/sponsor’s most recent income tax return, most recent wage statements, and 1099’s if applicable;
- Copy of the petitioner/sponsor’s proof of U.S. citizenship or LPR documentation (birth certificate, U.S. Passport ID page, or green card);
- Copies of the petitioner’s 2-3 recent pay stubs or last 6 bank statements if retired or self-employed;
- Petitioner/sponsor’s letter of employment from his/her employer (on company letterhead, signed & dated by
- If the petitioner/sponsor does not meet the income guidelines, the petitioner can use their assets to supplement any deficiency in income or obtain a joint sponsor. See our affidavit of support and joint sponsor pages for more information;
Additional Documents for 245i:
- Additional $1,000 filing fee for 245i Supplement for I-485 Application for Permanent Residence payable by personal check, cashier’s check, or money order to “Department of Homeland Security";
- Proof of filing of the visa petition or labor certification (copy of receipt notice);
- Proof of physical presence in the U.S. on December 21, 2000;
Conditional Permanent Residence
If the couple have not reached their two year anniversary by the time the I-485 application for permanent residence is approved, the beneficiary will receive a conditional permanent resident card that is valid for a period of 2 years. This means that the beneficiary’s green card will be conditional based on the beneficiary’s marriage to the U.S. Citizen spouse. This is done purposely as a fraud prevention mechanism.
The beneficiary will need to remove the conditions on their conditional residence by filingUSCIS Form I-751 Removal of Conditionsjointly with their spouse within the 90 day window immediately before their green card expires. Failure to do so will put the beneficiary at risk of deportation. The beneficiary will need to provide supporting documents with their I-751 application for removal of conditions proving that the marriage was entered in good faith.
If the marriage has ended in divorce, annulment, the US citizen spouse has died, or if the beneficiary was subjected to extreme cruelty, was battered during the marriage, or the beneficiary can demonstrate that their removal would result in extreme hardship, the beneficiary can obtain a waiver of the joint filing requirement.
If the marriage is more than two years old at the time the I-485 application is approved, the beneficiary will receive the 10-year permanent resident green card. If the parties remain married, the green card holder can apply for citizenship once they reach their 3rd anniversary on their permanent resident card. For more information please visit our I-751 visa page.
Change of Address:
If you move to a new address while your immigrant application is in process, you must notify USCIS by law by submitting Form AR-11 electronically for each application that is in process with USCIS. You can do so by visiting the USCIS website. Failure to do so may jeopardize receipt of important documentation such as receipt notices, employment authorization cards, and green cards. You do not want this sensitive information falling into the wrong hands forever. Losing a green card due to irresponsibility can lead to re-filing of the green card application, loss of time and money in the process.