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 residing or staying in the U.S. who 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 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 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 and not.
Why Is Being Eligible to Adjust Status So 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, and can be applied for before departing the United States, but not everyone will qualify for this waiver.
If the applicant can adjust status, however, 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 Procedure?
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 petition from USCIS (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 number 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 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, within the 90 days that your visa was valid (but see a lawyer if you married late, it might still be possible to proceed).
- 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 a few exceptions) have entered the U.S. with permission, after inspection by border agents, and be in valid visa status at the time of your application to adjust status. In most situations, you must not have stayed past the expiration of your permitted stay or worked without permission from U.S. immigration authorities.
- If you don't match the above, you fall into an exception.
- One major exception regarding overstays 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, even after an unlawful stay in the United States.
- Another partial exception, created by courts in the Sixth, Eighth, and Ninth federal circuits and applicable only to people living within those jurisdictions, says that people who currently hold Temporary Protected Status (TPS) can be considered to have been admitted to the U.S. lawfully and with inspection for adjustment of status purposes. However, the Board of Immigration Appeals (B.I.A.) won't allow this in other jurisdictions (see Matter of Z—R—Z—C—), and won't consider TPS holders to be in "lawful status" after their TPS expires.
- VAWA self-petitioners, who've filed or are filing Form I-360 on the basis of an abusive relationship with the U.S. citizen or permanent resident who would normally have petitioned for them, are also exempt from the adjustment of status bars.
Special Eligibility Cases: Section 245(i)
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 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:
- the beneficiary of an immigrant petition or labor certification application (including I-140, I-130, I-360, or I-526), which was filed on or before April 30, 2001, and
- if the petition was filed between January 14, 1998 and April 30, 2001, 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, do not take any chances. Consult with an immigration attorney for a full analysis of your rights and options.