An adjustment of status (AOS) refers to the petition that an alien physically present in the United States submits to U.S. Citizenship and Immigration Services (USCIS) in order to change his or her status from nonimmigrant to immigrant, thereby becoming a lawful permanent resident.
Not all aliens are necessarily eligible to apply for an AOS, however. In this article, we explore the criteria that AOS applicants must satisfy in order to submit an I-485 petition to USCIS.
Physical presence in the United States
If an alien does not reside in the United States, she cannot adjust her status. Her alternative route to a green card is to undergo immigrant visa processing at a U.S. consulate or embassy in her country of nationality or country of foreign residence. This process is referred to as consular processing.
Approved underlying immigrant petition
This criterion applies only to the beneficiaries of a family-based immigration petition (i.e. a Form I-130 petition), with one exception: An alien who is the immediate relative of a U.S. citizen is permitted to file an AOS concurrently with the petition filed by the U.S. citizen on the alien relative’s behalf.
For information on family relationships that qualify as “immediate relatives,” click here.
For employment-based immigrant petitions, an I-485 application can be concurrently filed with the underlying Form I-140 petition, provided that a visa number is available to the prospective beneficiary at the time of filing.
For more information on concurrent filing, click here.
Visa number availability
As stipulated by statute, immigrant visas are subject to numerical quotas on a yearly basis. The consequence of a limited supply of visas and demand exceeding supply has been a backlog in visa number availability. Aliens can submit an AOS petition only when the cut-off dates published every month in the U.S. Department of State’s (DOS) visa bulletin fall after their priority dates, or alternatively if their immigrant category is “current.”
Lawful admission to the United States
As noted above, an alien must physically reside in the U.S. in order to be eligible for an AOS. Prior to residing in the country, however, aliens must have been both inspected and lawfully admitted to the United States. The term “inspected” refers to an alien presenting himself to an immigration officer at a U.S. port of entry, while the term “lawfully admitted” refers to an immigration officer informing an inspected alien that she has been allowed to enter the country. In general, an alien’s I-94 will indicate lawful admission to the U.S. Aliens who did not enter the United States lawfully generally cannot apply for an adjustment of status.
Not becoming a public charge
According to USCIS, a “public charge” is an individual who “is likely to become primarily dependent on the government for subsistence, as demonstrated by the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.” Section 214(a)(4) of the INA stipulates that an alien who is currently or is likely “at any time” to become a public charge is inadmissible. Aliens who wish to adjust their status must therefore establish that they have the financial means of support themselves, or alternatively that their sponsoring relatives in a family-based petition have said ability.
No change in circumstances
A change in circumstances with respect to an alien’s underlying immigration petition—even circumstances outside the alien’s control—can render said alien ineligible to file for an AOS. For your reference, we highlight hypothetical, though not uncommon, changes in circumstances below.
Family-based changes in circumstances:
Marriage-based changes in circumstances:
Employment-based changes in circumstances:
It’s important to note that aliens who meet all of the above criteria are not automatically eligible to adjust status. For various reasons, aliens may be statutorily barred from adjustment. Statutory bars to adjustment include:
Aliens who have engaged in unauthorized employment, or who were not in lawful status at the time they filed their AOS applications, or who have failed to continuously maintain their status for even a single day since their entry in the United States are barred from adjusting status.
As with many prohibitions, however, there are exceptions to the above. These include:
-An individual or organization's failure to act on behalf of an alien where such inaction directly contributed to the violation of the alien's legal status.
-USCIS's failure to act in a timely manner on an application properly filed by the alien.
-The physical disability of an alien inhibited his timely request on legal status.
Other Special Circumstances
Aliens who are the beneficiaries of certain nonimmigrant visas must carefully consider their eligibility before adjusting status. We highlight several eligibility-related circumstances below.
Exchange visitors with J visas
J-1 or J-2 status holders are subject to a two-year foreign residence requirement, stipulating that they return to their home country or foreign country of residence and remain there for at least two years upon completion of their J status. If a former J-1 or J-2 holder has not satisfied this requirement, or alternatively has not been granted a waiver of this requirement, then said alien will be barred from adjusting status.
Fiancé(e)s with K visas
Aliens admitted under the K-1 visa category for fiancé(e)s are eligible to petition for an AOS on a conditional basis, and only if the AOS stems from the K-1 holder’s marriage to the sponsoring U.S. citizen within 90 days of entering the country. If the alien marries a U.S. citizen other than the one who filed the K-1 petition, then said alien will be barred from adjusting status.
Aliens in removal proceedings who marry a U.S. citizen or permanent resident
The default rule in these instances is that if the marriage was not entered into in good faith, then the alien is not eligible for an AOS. On the flip side, if the alien can demonstrate, with clear and convincing evidence, that the marriage was legitimate—and not for the mere purpose of obtaining permanent resident status and avoiding deportation—then the alien will be eligible to adjust status.
Aliens who entered under visa waiver programs
Aliens who, as tourists or business visitors, were admitted through the Visa Waiver Pilot Program under Section 217 of the INA or through the Guam and Northern Mariana Islands Visa Waiver Program under Section 212 of the INA are barred from adjusting status. Note, however, that this bar does not apply to persons admitted under these programs who are seeking adjustments as spouses, unmarried minor children, or parents of U.S. citizens. Additionally, the 245(i) exception is available to those who qualify. (For more information regarding 245(i) of the INA, click here.)
Crewmembers with D visas
Foreign national crewmembers who were serving on a vessel or aircraft at the time of their arrival to the U.S. are barred from adjusting status. Again, however, the 245(i) exception is available to those who qualify. (For more information regarding 245(i), click here.)
Transits without a visa
Aliens in transit without a visa, traveling through the U.S. to another country, are barred from adjusting status. Once again, though, the 245(i) exception is available to those who qualify. (For more information regarding 245(i), click here.)
Adjustment of status is discretionary
Ultimately, adjusting status successfully hinges on the findings of the USCIS officer handling a given case. In other words, the decision rendered on an AOS petition is discretionary. Practically speaking, this means that even if an alien seems objectively eligible for adjustment and is not impeded by any of the statutory bars listed above, the end result could be that USCIS still denies her AOS application.
In our experience, adjustment of status tends to be granted when the alien applicant is statutorily eligible for AOS, in addition to presenting no “negative factors.” Understanding what we mean by “negative factors” is easiest by way of a comparison. Having close family relatives or immediate relatives in the U.S. may be a strong factor favoring adjustment. But a preconceived intent to remain in the U.S. at the time of entry as a nonimmigrant, even if said intent does not constitute fraud or willful misrepresentation, may be a sufficient negative factor in denying an adjustment of status application.
Our Firm is Here to Help
Given the often complicated process and the high stakes—a chance at permanent residency in the United States—involved, it’s imperative that aliens seeking adjustment consult with an experienced immigration attorney. To begin your potential AOS case, contact Zhang & Associates for an initial free consultation by clicking here.
For more detailed information on adjustment of status, including related issues, refer to the following links:
General AOS Topics
Further Reading on AOS