Adjustment of Status
- Q: Am I eligible to file for Adjustment of Status (AOS)?
- Q: How will the Visa Waiver Program affect my Adjustment of Status?
- Q: What documents will be required when I file for Adjustment of Status?
- Q: When does a person “age out” of eligibility for Adjustment of Status?
- Q: What will happen at my Adjustment of Status interview?
- Q: I have heard that approval of my Adjustment of Status application is discretionary. What are some reasons why my application would be denied and what can I do if it is?
- Q: Am I allowed to travel and work while my Adjustment of Status application is being processed by USCIS?
- Q: What is the section 245(i) exception to Adjustment of Status and do I qualify for it?
Q: Am I eligible to file for Adjustment of Status (AOS)?
A: In order to file for Adjustment of Status (AOS), you must meet certain criteria. The following are the requirements for AOS:
- You must already be physically present in the United States. If you are not currently residing in the United States, you are not eligible to adjust status in the U.S. Instead, you must go through the immigrant visa processing at a U.S. consulate abroad.
- Your immigration petition must have already been approved. This requirement is relevant for anyone who files a family-based immigration petition (Form I-130). If you are the immediate relative of a U.S. citizen, however, you may file an adjustment of status application along with the immigration petition (Form I-130), which is filed by the U.S. citizen on your behalf. An I-485 adjustment of status application can also be filed alongside an I-140 employment-based petition (EB-1 and EB-2). However, eligibility is subject to the availability of visa numbers.
- You must not have entered the United States illegally. In order to be eligible for Adjustment of Status, you must have come into the U.S. in a legal manner. This means that you must have been inspected and lawfully admitted into the U.S. The USCIS will consider you inspected if you presented yourself to an immigration officer at a U.S. port of entry. The USCIS will consider you admitted it an officer informed you of such and you are allowed to enter into the U.S. Generally, your I-94 and/or the visa stamp in your passport indicates that you have been legally admitted into the U.S. If you have any questions about whether you were “inspected” or “admitted” into the U.S., please ask your immigration attorney.
- You do not have any change in circumstance. If you have any change in your circumstances since first be admitted into the United States, this could alter your eligibility for adjustment of status, meaning that you may no longer qualify. Examples of changed circumstances which could affect your adjustment of status application include:
- Death of the U.S. citizen or permanent resident immediate relative before the adjustment of status application is approved
- Marriage of a child under the age of 21 before the adjustment of status application is approved based on immediate relative status of a U.S. citizen or permanent resident
- Divorce, legal separation, or death of a husband/wife before the adjustment of status application is approved based on immediate relative status of a U.S. citizen or permanent resident
- Withdrawal of an employment position before the adjustment of status application is approved based on an employment-based visa category
- Change of employment position while on a National Interest Waiver
- For any employment-based visa petition that requires a Labor Certification, you must have worked for the petitioning employer for 180 days after the I-485 has been filed or USCIS may deny your adjustment of status
If you meet all the above listed eligibility criteria, it does not, however, mean that you are automatically qualified for Adjustment of Status. If you are statutorily barred from Adjustment of Status, you will not be able to adjust your status in the U.S. The following is a list of statutory bars to Adjustment of Status in the U.S.:
- Unauthorized employment If you worked unlawfully while in the U.S. at any point, you are statutorily barred from adjustment of status.
- Unlawful status If you were not in lawful status in the U.S. at the time of filing the adjustment of status application, you are statutorily barred from adjustment of status.
- Failure to maintain status. If you failed to continuously maintain your legal status for even a single day since your entry into the U.S., you are statutorily barred from adjustment of status.
Even though you have a statutory bar to your eligibility to adjust your status, you may qualify for one of the following exceptions:
- Immediate relatives of U.S. citizens are still eligible to adjust their status. This includes spouses, parents, and unmarried children under the age of
- Employment-based immigrants who have been out of status for no more than 180 days in the U.S. are still eligible to adjust their status.
- A violation of status that is, in effect, a “technical violation” does not make the alien ineligible to adjust status. These violations must have not
- been due to the alien’s own fault. Examples of “technical violations” include:
- An individual or organization’s failure to act on your behalf and that inaction directly contributed to the violation of your legal status
- USCIS’s failure to act in a timely manner on your application that was properly filed
- Your physical disability prevented you from requesting legal status in a timely manner
- The 245(i) exception is available to those who qualify
Keep in mind that there are additional requirements, which are based on the specific visa that you currently hold or other circumstances, such as whether you are in removal proceedings. Another important point to remember is that Adjustment of Status is discretionary. This means that the USCIS officer handling your case may still deny your application for Adjustment of Status even if you are otherwise eligible to adjust status and you do not have any of the statutory bars to adjustment of status eligibility.
Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.
Q: How will the Visa Waiver Program affect my Adjustment of Status?
A: Change from Visa Waiver Program to another non-immigrant visa: If you are a tourist who came to the United States under the Visa Waiver Program and now wish to change status to another non-immigrant visa status in order to stay longer in the U.S., there are certain factors to consider in order to determine whether you are eligible for Adjustment of Status. As a general rule, you will not be able to change your status while still in the United States. The majority of people will not be able to change from the Visa Waiver Program to another non-immigrant visa while still in the U.S. and will, instead, need to go home and apply for a visa through consular processing at the U.S. consulate in their home country.
Exceptions: There are only rare exceptions to the general rule that you cannot adjust status from the Visa Waiver Program to another non-immigrant status. These include U Visas, refugees, and asylum.
Change from Visa Waiver Program to Lawful Permanent Resident Status: If you wish to adjust your status from a Visa Waiver to Lawful Permanent Resident (green card holder) status, there are other factors you will need to consider in order to determine whether you are eligible for Adjustment of Status. Generally, you are not able to file an adjustment of status application while on the Visa Waiver Program while still in the United States. When you entered on the Visa Waiver Program, you certified to the Customs and Border Protection (CBP) agent who admitted you that you did not intend to remain in the United States. If you did intend to stay in the U.S., you would not have been eligible for the Visa Waiver Program.
Exceptions : There is an exception to the general rule that you cannot adjust from the Visa Waiver Program to Lawful Permanent Resident status, however. There is an exception for immediate relatives of U.S. citizens who are the beneficiaries of an immediate relative immigration petition who have filed an Adjustment of Status application within the 90 day period authorized. Within this 90 day time frame, you can file an adjustment of status application if you are one of the following:
- Married to a U.S. citizen
- The unmarried child under the age of 21 of a U.S. citizen
- The parent of a U.S. citizen, if the petitioning U.S. citizen child is 21 years of age or older
Keep in mind that if you apply for adjustment of status after this 90 day period or if you have been placed in removal proceedings, you may not be eligible for adjustment of status. You will also still have to prove that you did not have the intent to remain in the U.S. when you applied for the Visa Waiver Program, as well.
Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.
Q: What documents will be required when I file for Adjustment of Status?
A: You will be required to produce a variety of documents when you file for Adjustment of Status. Each individual case will vary, but below is a list of documents normally required to be produced alongside an adjustment of status application:
- Form I-485, Application to Register Permanent Residence or Adjust Status
- Two identical color photos recently taken of yourself;
- Medical exam report (Form I-693 and supplement), sealed and signed by the USCIS certified physicians;
- Evidence of financial support in the U.S.:
- Employment verification letter from your employer;
- W-2 forms for past three years;
- Tax return forms for past three years; and
- Copy of latest paycheck.
- If you do not have a job or sufficient funds, you will need a sponsor to submit these documents
- Copy of the approval/receipt notice for the immigration petition that your Adjustment of Status will be based upon, if applicable;
- This will not be required if your Adjustment of Status is filed concurrently with the immigration petition
- Marriage certificate or birth certificate, if applicable;
- Copy of your passport and visas;
- Copy of your I-94;
- Copy of your I-797, I-20, IAP-66, if applicable;
- A filing fee of $1,070 for an adult;
- A filing fee of $985 for children under 14 years old if the Adjustment of Status is not filed with the I-485 application of at least one parent, $635 if the Adjustment of Status is filed with the I-485 application of at least one parent.
When completing the Form I-485, Adjustment of Status application, you will be required to provide a wealth of information about yourself and the U.S. citizen petitioner. Some of the information required includes information about your arrival in the U.S., information about your residences and family, any political affiliations, and financial information for your sponsor.
Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.
Q: When does a person “age out” of eligibility for Adjustment of Status?
A: Aging out becomes an issue in an Adjustment of Status case when a “child” submits an adjustment of status application and, during the processing of that application, the “child” turns 21 years old. At this time, that “child” becomes ineligible to become a permanent resident of the United States because he or she has “aged out.”
A “child” is defined, under the U.S. immigration laws, as an unmarried person under the age of 21 who is either a:
- Child born in wedlock (formerly called a legitimate child)
- Step-child, whether legitimate or not, as long as the child was under the age of18 when the step-relationship was created between the child and parent
- Child born out of wedlock where relationship is either with the mother or with the father if, in the case of the father, a bona fide parent-child relationship exists
- Child legally legitimated before the age of 18 if in custody of the father at the time of legitimization
- Children adopted before the age of 16, and having 2 years legal custody and residence with the adopting parent. However, if the family has already adopted a sibling, the second brother or sister who is adopted can be under the age of 18 at time of adoption.
- Certain orphans
The Child Status Protection Act (CSPA), which went into effect on August 6, 2002, changed the circumstances under which a child “ages out” for immigration purposes by working to prevent some children from aging out. The CSPA applies to child beneficiaries of a pending or approved immigration petition that was filed on or after August 6, 2002. The CSPA was enacted by Congress to protect a child’s beneficiary status as a child when there are excessive processing times and backlogs for visa petitions. Keep in mind that, in order to qualify for CSPA protection, the person:
- Must be the beneficiary of a pending or approved visa petition which was submitted on or after August 6, 2002,
- Must not have had a final decision on an adjustment of status application or immigrant visa application before August 6, 2002, and
- Must “seek to acquire” permanent residence within 1 year of a visa becoming available. “Seek to acquire” is defined by USCIS as having a Form I-824 (Application for Action on an Approved Application or Petition) filed on the child’s behalf or the filing of a Form I-485 (Application to Registered Permanent Residence or Adjust Status) or filing Form DS-230 (Application for Immigrant Visa and Alien Registration) with the Department of State.
Q: What will happen at my Adjustment of Status interview?
A: About several months after you submit your Adjustment of Status application and supporting documents, you will by called by USCIS for an interview. Your petitioning U.S. citizen, resident, or employer who submitted the Adjustment of Status application on your behalf may also be called into the interview. You will need to ensure that you are available to attend this interview and that you are prepared by gathering the documents you will need to bring and understanding the questions which may be asked. If you cannot attend your interview appointment for some reason, you will need to contact USCIS in order to request a date for rescheduling. If you fail to request a new date and fail to show up to your interview appointment, your adjustment of status application will be denied and you may be removed from the United States.
Before the interview:
You should review all of your paperwork before the interview, including the questions and answers on all the forms and documents that you and your petitioner submitted to USCIS. You should pay special attention to the dates that your visited or lived in different areas, financial figures, and your immigration history. If you notice any errors or if there have been any changes to your documents, you should be prepared to explain this to the USCIS officer and bring along any documents that confirm the new information, such as a new employment letter and copies of recent pay stubs if your employment has changed.
What to bring:
You should bring your passport with you to the interview as photo identification and so that it can be stamped. If your adjustment of status application is based on marriage, you will need to bring evidence that you are married and are living together. This proof includes the original marriage certificate and rental and utilities bills and records. Bring along the originals of the documents you used to enter the United States and any documents that you have received from the U.S. consular or USCIS. If a tax year has passed since your application submittal, you should bring a copy of your most recent tax return.
During the interview:
Once in your interview, the USCIS officer will review your adjustment of status application and ask you several questions in order to determine whether or not you are eligible to adjust status and whether your petitioner has the financial capability to support you in the case of a family petition. If the USCIS officer asks you a question that you do not know the answer to or do not remember, say so. Do not lie or try to guess an answer that you are unsure of.
If you are not comfortable having your interview in English, you will need to either bring a relative or friend with you or you can hire an interpreter to assist you. If you choose to hire an interpreter, he or she must be over the age of 18, a U.S. citizen or legal resident, and must be fluent in both English and your language. An interpreter will not be provided by USCIS at the interview. Keep in mind that, for a marriage-based green card interview, your spouse will not be allowed to be your interpreter.
For marriage-based green card interviews, your spouse will more than likely be called in for the adjustment of status interview along with you. Your spouse should also carry photo identification, such as a driver’s license or passport, to the interview. He or she should also bring proof of legal status, such as a birth certificate, passport, naturalization certificate, or permanent resident status card. You will likely be asked questions about your married life in order for the USCIS officer to determine whether your marriage is bona fide. Questions that USCIS may ask you and your spouse that you should be prepared to answer include:
- When and where did you two meet?
- Why did the two of you decide to get married?
- How many people were in attendance at your wedding?
- What did you do on your most recent night out?
- What did you do for your birthday?
You need to be able to provide documents as evidence of your bona fide marriage, as well. Examples of documents that you could use include:
- Marriage certificate
- Photographs of your wedding, home, vacations, etc.
- Joint bank account information
- Joint utility bills
- Mortgage documents or rental agreements
If marriage fraud is suspected by the USCIS officer, you will be required to meet with the fraud unit. You and your spouse will be interviewed separately and asked numerous questions. USCIS officers will then compare the answers that you and your spouse gave in your separate interviews to see if they match up.
Keep in mind that, if you have legally separated or have filed for divorce from your partner, you case will likely be rejected and you will not be able to receive a green card unless you can show that your spouse is abusive, in which case you will need to file a self-petition on Form I-360 even if you are divorced. This must be done within two years of the final divorce decree and you must be able to prove that the divorce was connected to the abuse from your spouse.
Q: I have heard that approval of my Adjustment of Status application is discretionary. What are some reasons why my application would be denied and what can I do if it is?
A: Adjustment of Status is considered discretionary. This means that your adjustment of status application can be denied by USCIS even if you are otherwise eligible to adjust status, have no statutory bars, or if you have a statutory bar and yet qualify for an exception.
Generally, in practice, adjustment of status applications will be granted when the alien is statutorily eligible and there are no “negative factors.” Negative factors may include:
- Fraud in your initial application
- Misrepresentation in your initial application
- Preconceived intent to remain in the United States when coming as a non-immigrant
- Unlawful entry into the United States
- Overstaying the period you were legally allowed to be in the United States
- Criminal background, including any misdemeanors or felonies
- Other ineligibility factors
When negative factors do exist in a case, the factors will be weighed in order to determine whether the adjustment of status will be granted to the alien. Close immediate family relatives in the United States are strong positive factors that will help tip the scale in an alien’s favor. In most cases there are no negative factors to consider and the positive factors, which are inherent in most adjustment of status cases, prevail. Other positive factors that USCIS will consider weighing against negative factors are:
- Unification of the family, in the case of relative petition-based adjustment of status cases
- Meeting the needs of American business, in the case of employment petition-based adjustment of status cases
- Humanitarian and other factors in the case of asylum adjustment of status applications
- Special act adjustment of status
If you had the preconceived intent to remain in the United States at the time of your entry into the country as a non-immigrant, this alone could be a sufficient negative factor to deny your adjustment of status application. This is true even if your intent and legal entry did not result in fraud or willful misrepresentation. However, having positive factors in your favor, such as being the immediate relative of a U.S. citizen, can help you overcome this negative factor.
If your adjustment of status application is denied by USCIS, there is no administrative appeal available. This means that you cannot seek direct judicial review of a USCIS decision denying your Adjustment of Status. The only administrative options available to you are to file a motion to reopen or reconsider and to reinitiate the adjustment of status application if USCIS refers the case for removal proceedings. Keep in mind that if you file for Adjustment of Status while in removal proceedings, you must still meet all the eligibility requirements.
Q: Am I allowed to travel and work while my Adjustment of Status application is being processed by USCIS?
A: If you have applied to adjust your status to permanent residence status, you do have the ability to apply for employment authorization during the time that your adjustment of status application is pending approval. However, your ability to travel outside of the United States will be restricted while your adjustment of status application is pending until you are officially approved for permanent U.S. residency.
Applicants for Adjustment of Status who leave the United States while their adjustment of status application is processing are considered to have abandoned their application. These applicants will then need to wait outside the United States for consular immigrant visa processing, unless they obtain an advance parole travel document first or unless they maintain a valid L or H visa status. If you maintain a valid L or H visa status, you may either travel on your valid visa or obtain advance parole travel documents and employment authorization documents.
Therefore, for most applicants, if you wish to travel outside the United States while your adjustment of status application is pending, you will need to receive advance parole travel documents. These documents can be issued for any bona fide travel need. The period of time for obtaining these travel documents will vary from one day to several months, depending on the jurisdiction where your application is pending.
Normally, if you have received the proper advance parole travel documents, traveling outside the United States while your application is pending is safe to do. However, if you have accumulated 180 days of unlawful presence prior to filing your adjustment of status application for permanent residence, any departure from the United States, even with your advance parole documents, will trigger the 3 year or 10 year bar to admissibility. This could then result in the denial of your application for permanent residence unless you qualify for a waiver.
If your spouse or children are not working, they may enter on their visas or with advance parole, as well.
Q: What is the section 245(i) exception to Adjustment of Status and do I qualify for it?
A: Generally, if you entered the United States without being inspected by a USCIS officer, if you have ever been unlawfully employed while in the United States, or if you failed to always maintain your lawful status in the United States, you are barred from adjusting your status in the U.S. Section 245(i) was first added in 1994 to allow those who qualify for green cards, but not for adjustment of status, to be eligible to adjust their status in the U.S. if they pay a fine, which is currently $1,000 USD. This law was phased out by Congress on January 14, 1998. However, those who had already qualified under the law as of that date were considered to be “grandfathered” into the benefits of section 245(i), no matter the current date. Then, on December 15, 2000, Congress extended the grandfathering date of section 245(i) to April 30, 2001. This extends the benefits of section 245(i) to anyone who had labor certifications or visa petitions filed on their behalf between 1998 and 2000. Once you qualify for section 245(i) benefits, your eligibility never expires.
In order to qualify for section 245(i) benefits, you must have had a labor certification or visa petition (I-130, I-140, or I-360) filed on your behalf on or before January 14, 1998. You will also qualify for section 245(i) benefits if you had a labor certification or visa petition filed on your behalf after January 14, 1998 but on or before April 30, 2001 if you were physically present, legally or illegally, in the United States on December 21, 2000, the date of enactment of the new law. It is not necessary that USCIS approved your application or petition by that date, only that it was filed by that date. You also do not have to adjust status in the same category that you were petitioned for, which means that you may be able to adjust your status more quickly if you are eligible for another category.
Keep in mind that if you have been unlawfully present in the United States for 180 days or more, you may be subject to either a 3 year or 10 year bar to returning to the United States, even if you are eligible for section 245(i). Therefore, you should not travel outside the United States until you become a U.S. permanent resident.
Your spouse and children can also be considered “derivative beneficiaries” of the labor certification or visa petition filed between eligibility dates for section 245(i) purposes. This will entitle your spouse and your children to the benefits of section 245(i), as well. This means that if you later qualify for a green card for any reason, including winning the green card lottery, you and your family will be able to adjust your status to permanent residence under section 245(i). This is true even if your children “age out” by turning age 21 or by marrying, as long as they were “derivative beneficiaries” of a visa petition or labor certification filed on or before April 30, 2001.