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 foreign nationals already residing or staying in the U.S. who know that they are, in theory, eligible for a green card: Will they be able to apply for the green card at an office of U.S. Citizenship and Immigration Services (USCIS), in the United States? Or will the immigrant have to leave to visit an overseas U.S. consulate in order to complete the application for lawful U.S. residence?
This U.S.-based process is known as adjustment of status. Its sister procedure, in which immigrants apply for the green card and attends an interview at a U.S. consulate in their own country, is called "consular processing." As also discussed below, being able to adjust status means, for some immigrants, the difference between being able to successfully apply for a green card and not.
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 showing extreme hardship to qualifying family members, and can in most cases be applied for before departing the United States (unless the applicant also needs to apply for other waivers). But not everyone will qualify for the waiver of unlawful presence.
An applicant who can legally adjust status 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.
You can't just decide you want to adjust status in the United States: You have to be eligible for it (according to Section 245 of the Immigration and Nationality Act), as follows:
Unfortunately, owing to a 2021 Supreme Court case, holding TPS is no longer a valid exception allowing adjustment of status in any jurisdiction.
If your eligibility to adjust status depends on having made a lawful entry, you'll need to prove it, ideally with documentation such as a Form I-94 (created by Customs and Border Protection or CBP when foreign nationals enter the United States). But also see, for example, My Visa and I-94 Are Missing—How Do I Prove Lawful Entry for Adjustment of Status?.
A "lawful entry" means the person has been "inspected and admitted or paroled" into the United States by an immigration officer. This might mean entry with a valid visa or other status , such as a visitor visa for business or pleasure (B-1 or B-2) or student visa (F-1 or M-1). Again, it does NOT include entry under the VWP.
Oddly enough, it can include entry by means of presenting fraudulent documents. Nevertheless, the USCIS Policy Manual makes clear that someone who falsely claims U.S. citizenship, U.S. nationality, or lawful permanent resident status in order to gain entry to the United States will not be considered to have been admitted or inspected, and therefore is not adjustment-eligible. See USCIS Policy Manual Vol 7 Part B Chapter 2, Reid v. INS, 420 U.S. 619 (1975), and Matter of Collado-Munoz, 21 I&N Dec. 1061 (B.I.A. 1997). What's more, using fraud to gain entry could ultimately result in your being found inadmissible and denied the green card.
Of course, a lawful entry is NOT one in which someone accesses the United States from an unguarded point along the border, tunnels under, hides in a car or van traveling through a checkpoint, and so o
The categories above are those that most adjustment-eligible applicants fit into. However, a few people who have lived in the U.S. for several years are still allowed to 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 might let you adjust status upon payment of a $1,000 penalty fee. You will need to show that you were:
Few people can meet these criteria anymore.
This is clearly a complex area of the law. When in doubt about your eligibility to adjust status, do not take any chances. Consult with an immigration attorney for a full analysis of your rights and options, and for assistance with preparing forms and other paperwork.
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