Adjustment of Status

Adjustment of Status is a procedure in which certain aliens who are physically present in the United States may become lawful permanent residents of the United States without leaving the United States. It is usually the final step in the immigration process. Individuals not eligible for adjustment of status must travel to a US Consulate abroad in order to apply for an immigrant visa. Many individuals choose to Consular process rather than filing an adjustment of status application in the United States because of the current processing times. You should consult your attorney to determine if you are eligible to adjust status and whether you have an unauthorized presence problem which would create a problem if you departed the United States.

Adjustment of status is a privilege granted in limited circumstances. It is a deceptively simple application. However, we do not recommend filing an application without first consulting an attorney. The statutory prerequisites for adjustment of status may be found at Section 245 of the Immigration and Nationality Act as amended. In addition to the statutory prerequisites, consideration must be given to any adverse factors which will lead to a discretionary decision not to grant the application. Many factors are considered when processing the application. Although the forms are simple, the strategy is not so simple. If you make a mistake it may be one that has significant consequences over the rest of your life. Your attorney will advise you as to what process should be followed for derivative family members.

The first requirement for adjustment of status is that an individual must have been inspected, admitted or paroled into the United States. Individual’s who have entered the United States without inspection or as stowaways are not eligible to adjust status unless they are grand fathered under Section 245(i) of the Immigration and Nationality Act. Not all individuals inspected and admitted to the United States are eligible to adjust status. For example an alien crewman or an alien fiancee who does not marry the petitioning U.S. citizen is not eligible to adjust status.

In 1994 the adjustment procedure was expanded by the enactment of Section 245(i) of the Immigration Act. Section 245(i) radically expanded those who are eligible for permanent residence to include those who entered the United States without inspection or otherwise failed to maintain status, alien crew members and aliens admitted in transit without a visa. The law did not permit stowaways, fiancees and certain other aliens previously ineligible to adjust status adjust, to use 245(i). In order to qualify under Section 245(i) an individual must be the beneficiary of an immigrant visa petition, labor certification or employment based petition filed on or before April 30, 2001. Consideration should always be given to whether the individual was a derivative beneficiary. In addition the individual must have been physically present in the United States on December 21, 2000, the date of enactment.

An application to adjust status is usually accompanied by a family based or employment based visa petition. This means the individual has a qualifying family member or a labor certification filed by an employer and a visa number is immediately available to them. Whether a visa number is immediately available is determined by the category in which you are attempting to immigrate. Other than employment or family based applications, an adjustment applicant may be an asylee, filing under NACARA, the Life Act, Diversity Lottery, registry or be self-petitioning under the employment based category for extraordinary ability or national interest waivers or as a battered spouse. An adjustment application is always based upon eligibility under a substantive provision of the Immigration Act.

Prior filing the application, it must be determined if an individual is inadmissible to the United States. Some grounds of inadmissibility may be waived while others are a permanent bar to obtaining legal permanent resident status in the United States. Your attorney will review with you all the grounds of inadmissibility.

The application is filed either at the local or regional CIS office depending upon the basis of the application. If you are in removal proceedings the application must be filed with the Immigration Judge. This process differs somewhat from filing directly with the CIS. Each District Office and Service Center has its own variation on the procedure. However the substantive law is the same throughout the United States. For example some offices allow in person filings while others require the application be mailed.

After filing the individual will obtain receipt notices for each application. The receipt notices contain your file numbers. The progress of the case can be viewed online at www.uscis.gov using the receipt notices. Shortly thereafter, each applicant age 14 or older will receive a notice from the National Benefits Center to call the Customer Service Number at 1-800-375-5283 to make an appointment for fingerprints, photos and Biometrics at a local application support center. This process begins the FBI background check.

Ancillary applications such as employment authorization cards and advance parole will be adjudicated shortly thereafter. As the case progresses we will advise you when to expect these documents.

There are four primary advantages to adjustment of status. First you and any dependent family members are entitled to employment authorization and may be entitled to permission to travel while the application is pending. Second, it avoids the expense and inconvenience of traveling to your home country. Third, employment based applicants may take advantage of changing employers or jobs within the same employer at a certain stage of the application. Finally, there are more options in the event of an unfavorable decision. We will discuss all these issues with you.

Our firm prepares and files the entire application package. We manage critical expiration dates to avoid gaps in employment authorization or travel documents. We ensure that you as the client follow through on Biometrics and are advised as to your responsibilities while the application remains pending. We prepare you for the interview and if required attend the interview with you.

Return to Services page