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Adjustment of Status

Adjustment of Status is a procedure whereby eligible aliens who are already in the United States can apply for permanent residence status (also known as a green card) without leaving the country. Aliens who are not eligible have to leave the US to obtain an immigrant visa at a U.S. consulate. Aliens may seek to adjust status through family members or through an employment-based petition provided that there is a visa number available.

What is a Visa Number?
The law limits the number of immigrant visas that are available every year. This means that even if the USCIS approves an immigrant visa petition for you, you may not get an immigrant visa immediately. Whether or not a visa number is immediately available for you depends on your immigrant category. For example, if you are an immediate relative of a US citizen, which includes parents, spouses and unmarried children under the age of 21, you do not have to wait for an immigrant visa number to become available. However, you have to check whether there is a visa number currently available for you if you are:

  1. an unmarried, adult son or a daughter of a US citizen;
  2. a spouse, child, or unmarried, adult son or daughter of a permanent resident;
  3. a married son or daughter of a US citizen; or a brother or sister of US citizen

Please check the availability of your visa number at the Department of State website (the link is located under the “Related Links” tab in the navigation menu on the left).

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. In addition, U.S. law also limits the number of immigrant visas available by country. This means that you may have to wait longer if you come from a country with a high demand for U.S. immigrant visas.

Requirements Under Normal Adjustment Standards
Aliens seeking adjustment of status must meet the following requirements:

  1. Must have been admitted or paroled into the United States (meaning that a person must not have entered the country illegally). Please note that there are certain aliens who have entered LEGALLY but still are not able to adjust status (please see below);
  2. Must not have engaged in unlawful employment in the United States;
  3. Must have maintained status during all periods of stay in the United States and must not have violated the terms of a non-immigrant visa;
  4. If you seek adjustment of status based on an approved employment-based petition, you must be in lawful nonimmigrant status at the time of filing;
  5. Must fall into one of the eligible categories for adjustment, such as being an immediate relative of a U.S. citizen, being selected under the diversity program, falling under one of the family sponsored preferences or an employment-based preference; and
  6. An immigrant visa must be immediately available.

Please check the availability of your visa number at the Department of State website (the link is located under the “Related Links” tab in the navigation menu on the left).

Foreign Nationals Entering The U.S. Without Inspection
If a foreign national entered the U.S. illegally and was not examined by an immigration officer, he/she is not eligible for adjustment of status. This applies even to foreign nationals married to U.S. citizens or to foreign nationals who have a U.S. citizen as an immediate relative.

Violating One’s Immigration Status
A foreign national who violated the restrictions on his/her temporary visa while in the U.S. may not be able to adjust status. This may occur when a foreign national who does not have a work authorization engages in unauthorized employment. It can also occur when the foreign national stays beyond the expiration date of his/her visa status. These two violations are quite common, and although individuals may not think it is a big issue when the violation occurs, there are negative consequences that may arise years later when seeking a green card.

In addition, individuals who have an adjustment of status applications pending must apply for advance parole if they wish to leave the US during the pendency of their application. Failure to do so will result in the USCIS considering the application abandoned. In that case, the foreign national will likely have to apply for an immigrant visa overseas and wait for processing of the permanent residency application while outside of the US.

Certain Aliens That Cannot Adjust, By Having Entered Legally
Certain aliens will not be able to adjust status in the U.S. because he/she was admitted into the country in certain classes. Those classes of aliens are:

  • A crew member admitted to the D nonimmigrant category;
  • An alien admitted in transit without a visa through the United States to another country;
  • An exchange visitor in the J nonimmigrant category who is subject to the 2 years foreign residence requirement and has not fulfilled the requirement or received a waiver of it (note that a waiver may be granted in certain circumstances);
  • A tourist or business visitor admitted under the Visa Waiver Program or the Guam Visa Waiver Program for nationals from designated countries (please note that this rule does not apply to persons seeking adjustment as spouses or unmarried minor children of U.S. citizens);
  • A fiancé’ or fiancée’ of a US citizen who was admitted in the K category based upon an application for marriage to a different US citizen;
  • An alien seeking permanent residence on the basis of a marriage to a U.S. citizen or permanent resident entered into while administrative or judicial proceedings are pending regarding the alien’s right to enter or remain in the United States (exclusion, deportation, or removal proceedings). This bar may be overcome if the alien can establish by clear and convincing evidence that marriage was entered into in good faith and NOT for the purpose of procuring permanent residence;
  • An alien subject to removal proceedings commenced upon the alien’s arrival in the United States;
  • A child who is currently in a nonimmigrant status and is seeking adjustment of status as an orphan. Only children who are presently in the United States in parole status are eligible to be accorded orphan status and can apply for adjustment of status.  A growing number of adjustment applications filed in conjunction with orphan petitions have been denied for these reasons and, as a result, consular officers have recently been instructed to caution prospective adoptive parents seeking a nonimmigrant visa on behalf of an orphan that the child will be ineligible to adjust his or her status to permanent resident status as orphan while he or she is in the United States in nonimmigrant status. Note also that many state social service departments will not approve the adoption of a child with no immigrant status, so the U.S. citizen parent will not be able to confer immigration benefits on the child as an “adopted child.”;
  • An alien assisting in law enforcement activities who is admitted in the S category, unless the alien obtains the prior permission from the USCIS to apply for adjustment of status as evidenced by an approved Form I-854;
  • An alien who is deportable for having engaged in terrorist activities while in the United States.