This article is not about who fits the basic eligibility
categories for a U.S. green card (lawful permanent residence). It’s about a key
procedural question for any immigrant already living in the U.S. (or wishing to
do so as soon as possible) who already knows that he or she is, in theory,
eligible for a green card: Will the immigrant be able to apply for the green
card at an office of U.S. Citizenship and Immigration Services (USCIS), in the
U.S., without having to leave to visit an overseas U.S. consulate?
This U.S.-based process is known as adjustment of status. (Its
sister procedure, in which the immigrant applies for the green card and attends
an interview at a U.S. consulate in his or her own country is called “consular
processing.”) Being able to adjust status means, for some immigrants, the
difference between being able to successfully apply for a green card or not.
Why Is Being Eligible to Adjust Status Important?
For some people, the question of whether they are eligible
to adjust status is as important as whether they meet the underlying
eligibility criteria for a green card. That’s because they have accrued 180
days or more of “unlawful presence” in the U.S., as described in Consequences of Unlawful Presence in the U.S.: Three- and Ten-Year Time Bars. With unlawful presence on their record, departure from the U.S. could
result in a bar upon return, for three or ten years (depending on the length of
their unlawful stay). A waiver is available based on extreme hardship to qualifying family members, but not everyone will qualify for this waiver.
But if the applicant can adjust status, he or she won’t have to depart the
U.S. for an interview at a U.S. consulate abroad. No departure, no potential time bar upon return. It’s
as simple as that.
What Categories of Green Card Applicant Can Use the Adjustment of Status
You can’t just choose to adjust status in the U.S.: You have
to be eligible for adjustment of status (according to Section 245 of the Immigration and Nationality Act), as follows:
- You must already be eligible for a U.S. green
card (lawful permanent or conditional residence), perhaps through a U.S. employer,
a family member who is a U.S. citizen or permanent resident , or by having
received asylum or refugee status at least one year before.
- If your eligibility is based on employment or
family, you must already have an approved visa petition (Form I-130 or I-140) on
file, and your priority date, if any, must be current. Priority dates apply to
immigrants in “preference categories” who, because of annual limits on visas in
those categories, must wait until a visa is available before proceeding with
their green card application. (There are exceptions to the rule about having an
approved petition for immigrants in categories such as “immediate relative” where
the visa petition can be filed concurrently, or at the same time as the
adjustment of status application.)
- If you entered the U.S. on a K-1 fiancé visa, you must have married the person who petitioned for you to receive that visa.
- If your eligibility is based on asylum or
refugee status, you must have waited one year since either your asylum was granted
or you entered the United States as a recognized refugee.
- You must be physically in the United States.
- You must NOT have entered the U.S. as a foreign
national crewman, in transit without a visa ("TWOV"), or under the
Visa Waiver Program (VWP) (although entry on the VWP may be acceptable if you are
the immediate relative of a U.S. citizen -- see an attorney to find out USCIS policy in your area).
- You must (with some exceptions) be in valid visa
status at the time of your application to adjust status, including that you
have not have stayed past the expiration of your permitted stay or worked without
permission from the immigration authorities. One major exception applies to the immediate relative (children, spouse, or parents) of U.S. citizens. As long as they entered in valid visa status (and didn't use that visa fraudulently with the intent to apply for a U.S. green card after arriving), they may use "adjustment of status" as the procedure by which to apply for their green card.
Special Eligibility Cases: Section 245(i)
The categories above are those that most applicants must fit
into. However, a few people who have lived in the U.S. for several years are
still allowed adjust status based on some old laws called Section 245(i) and
the LIFE Act. If you fit most of the above criteria but are not eligible to
adjust status due to your illegal U.S. entry or other visa or status violation,
these laws let you adjust status, upon payment of a $1,000 penalty fee, if you
- the beneficiary of an immigrant visa petition or labor
certification application (including I-140, I-130, I-360, or I-526) that was filed
on or before April 30, 2001, and
- if the petition was filed between January 14,
1998 and April 30, 2001, you can also prove that you were physically present in
the U.S. on December 21, 2000.
This is clearly a complex area of the law. When in doubt
about your eligibility to adjust status, you should not take any chances.
Consult with an immigration attorney for a full analysis of your rights and