Oftentimes people enter the USA legally as non-immigrants and while here run into a change in their personal situation, which requires them to seek permanent residency from within the USA. Many circumstances may lead to such a situation. A foreign student who graduated from an American institution of higher education and found a job; a spouse of a US citizen, or an asylum recipient are some of the most common examples. The US immigration law commonly refers to the process of petitioning for a Legal Permanent Resident (LPR) status while inside the United States as “adjustment of status”.
Adjustment of Immigration Status
The Immigration and Nationality Act (INA) permits the change of an individual's immigration status while in the United States from nonimmigrant or parolee (temporary) to immigrant (permanent) if the individual was inspected and admitted or paroled into the United States and is able to meet all required qualifications for a green card (permanent residence) in a particular category. The common term for a change to permanent status is “adjustment of status.”
The INA provides an individual two primary paths to permanent resident status. Adjustment of status is the process by which an eligible individual already in the United States can get permanent resident status (a green card) without having to return to their home country to complete visa processing.
Consular processing is an alternate process for an individual outside the United States (or who is in the United States but is ineligible to adjust status) to obtain a visa abroad and enter the United States as a permanent resident) This pathway is referred to as “consular processing”
Congress has limited the number of immigrant visas that can be issued in any given year. If a family member or employer has petitioned you to receive an immigrant visa (i.e. sponsored you to immigrate to the United States), and you belong to a visa category to which Congress has limited the number of visas that can be issued annually, you will likely be required to wait a number of years for an immigrant visa to be available. Determining when an immigrant visa will be available is not an exact science as visa availability fluctuates monthly; while visa availability may move forward each month it also may jump, stall, or even regress.
This is an immigration case in which the two Respondents from India were found inadmissible by an Immigration Judge on the basis that they were not in possession of valid immigrant visas or other entry documents as required by 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2006) (the Act). The Immigration Judge also found the Respondents ineligible for adjustment of status under section 245(1) of the Act, U.S.C. § 1255(i) (2006), based on their inadmissibility under section 212(a)(9)(B(i)(II),and ordered them removed from the United States.
If an alien obtains status through marriage to a U.S. citizen (USC) or lawful permanent resident (LPR), he or she will be granted conditional residence (CR) rather than status as an LPR if the marriage was entered into less than 2 years before the grant of status. Derivative beneficiaries of the alien will also be CRs. A CR may apply to have the conditions removed on his or status within 90 days of the 2-year anniversary of the grant of CR. This article will discuss the rules and process for removing the conditions from permanent resident status in this scenario.
In order for conditional permanent residents who obtained their status through marriage to a U.S. citizen or marriage to a lawful permanent resident (LPR) prior to the marriage’s second anniversary to remove the conditions on his or her residency, the conditional permanent resident must normally file USCIS Form I-751 (Petition To Removal Conditions) along with his or her spouse, provided that the spouse is still living. The I-751 petition must be jointly filed within 90 days before the two year anniversary of the date that the conditional permanent resident obtained his or her status.
Persons who are granted asylum in the United States are eligible to apply for adjustment of status 1 year after receiving a grant of asylum after being physically present in the United States for one year. The spouses or children (henceforth, “derivative asylees”) of these asylees are also eligible to apply for permanent resident status 1 year after the grant of asylum, provided that they were admitted to the United States as asylees or were included in the principal asylee’s grant of asylum.
Overcoming the Presumption of Public Charge in Scenarios where a Qualifying Family Member is Filing an Immigrant Visa Petition or Adjustment of Status Application on Behalf of an Alien. Pursuant to INA § 213A(f), a “sponsor” is an individual who executes an affidavit of support for an alien seeking admission or adjustment of status to the United States. A sponsor is statutorily defined in INA § 213A(f).
The Cuban Refugee Adjustment Act (CAA) contains special provisions for the adjustment of status of natives or citizens of Cuba and their immediate relatives. Generally, a qualifying Cuban will be allowed to apply for adjustment of status after 1 year elapses from being admitted or paroled into the United States, and the same applies for immediate relatives. Under certain circumstances, a Cuban may be eligible even if he or she entered without inspection (EWI). This article will examine the rules for adjustment of status for Cubans and their immediate relatives.
The Legal Immigration Family Equity Act (LIFE Act), as codified in section 245(i) of the INA, created special provisions to permit AOS for persons who were ineligible on account of having entered without inspection (EWI) or being of a class described in section 245(c). In order to be eligible for adjustment under section 245(i), an alien must be the beneficiary of a labor certification application (LCA) that was filed on or after January 14, 1998, but on or before April 30, 2001, or the beneficiary of an immigrant visa petition that was filed on or before April 30, 2001. Provided that the alien meets that filing requirement, the alien will be “grandfathered” in for purpose of eligibility for section 245(i) Life Act AOS benefits.
The Attorney General has limited discretionary authority to grant parole to an alien who is in the United States without status. In 2013, United States Citizenship and Immigration Services (USCIS) formalized a process for considering parole-in-place for spouses, children, and parents of U.S. military personnel who are present in the United States after entry without inspection (EWI). This article will explain how parole in place works in general and its specific applicability to certain family members of U.S. military personnel.
Immigration law defines an alien who is “admitted” to the United States as an alien who made a lawful entry after inspection or authorization by an immigration officer. However, this leaves open the question of what happens if an alien is procedurally admitted, but was actually inadmissible at the time of entry. The question is important for aliens who were allowed to enter the United States after inspection and authorization, but were in fact inadmissible at the time of entry.
Most adjustment of status applicants are required to obtain a grant of advance parole prior to departing the United States in order for the adjustment of status application to not be abandoned. However, in recognition of the fact that both the H-1 (H1) and L-1 (L1A and L1B) nonimmigrant visa categories recognize dual intent, in that it is permissible to apply for adjustment of status and remain in the United States on lawful H or L status, the rules regarding travel and H1 and L1 status are unique.
Section 245(a) of the Immigration and Nationality Act (INA) allows for aliens who were admitted and inspected or admitted and paroled into the United States to apply for and obtain adjustment of status. Section 245(c) lists eight bars to adjustment of status. However, section 245(k) renders three of the bars listed in section 245(c) inapplicable to employment-based adjustment of status applications. We will review the relevant statutes and agency guidance to explain the rules for section 245(k) relief.
In order to be eligible for adjustment of status, an applicant must be admissible to the United States. Accordingly, the applicant must not be subject to health-related grounds of inadmissibility. In order to demonstrate that he or she is not inadmissible on health-related grounds, the applicant must undergo a medical examination and submit a Form I-693, Report of Medical Examination and Vaccination Record, completed by a designated civil surgeon. The medical examination is only valid for one year. This article will explain the rules for completing the medical examination requirement for an adjustment of status application.
An alien may only file a Form I-485, Application to Register Permanent Residence or Adjust Status when an immigrant visa number in his or her preference category is available. Therefore, in many family-based and employment-based adjustment of status cases, the immigrant visa petition must be filed before an adjustment of status application can be filed. Furthermore, after the immigrant visa petition is approved, the adjustment of status applicant must still wait until an immigrant visa number is available before filing for adjustment. However, in cases where an immigrant visa number in the adjustment of status applicant’s category is immediately available, United States Citizenship and Immigration Services (USCIS) allows “concurrent filing.”
In order to help consular officers determine, based on actions of a nonimmigrant, whether he or she is inadmissible for misrepresenting a material fact in applying for a visa, the Department of State created the 30/60 Day Rule in 9 FAM 302.9-4(B)(3). Because the “rule” only exists in the Foreign Affairs Manual (FAM), it is not binding on the United States Citizenship and Immigration Services (USCIS). However, USCIS has regularly applied the 30/60 day rule to determine whether visitors on B status, or visitors under the Visa Waiver Program, misrepresented a material fact in order to gain admission to the United States. In this article, we will look at how USCIS has used the 30/60 day rule. Additionally, we will look at precedent decisions regarding adjustment of status from B visa status when preconceived intent is established.
An alien with an approved Form I-360 Petition as a VAWA self-petitioner may apply for adjustment of status when his or her priority date is current. VAWA self-petitioners are exempt from the prohibition against adjustment of status based on entry without inspection (EWI) and the bars to adjustment listed in section 245(c) of the INA. Furthermore, the VAWA beneficiary may apply for naturalization after three years of permanent residency instead of five. In this article, we will explain priority dates in the VAWA adjustment of status context, employment authorization with an approved Form I-360, the exemptions from certain bars to adjustment of status for VAWA self-petitioners, and the shorter naturalization period.
Engaging in unauthorized employment has numerous adverse immigration consequences. In the adjustment of status complex, having at any time engaged in unauthorized employment may trigger the adjustment of status bars found in sections 245(c)(2) and (8) of the Immigration and Nationality Act (INA). In this article, we will follow the United States Citizenship and Immigration Services (USCIS) Policy Manual chapter on the issue and examine the relevant statutes, regulations, and administrative guidance to provide an overview of the effect of unauthorized employment on a nonimmigrant’s ability to adjust status under section 245(a).
Each month, the Department of State (DOS) releases an Immigrant Visa Bulletin. The Bulletin includes two charts for both family-sponsored and employment-based cases showing when people can file for immigrant visas. These charts contain the “application final action dates” and the “dates for filing” respectively.” The United States Citizenship and Immigration Services (USCIS) determines each month whether adjustment of status applicants in the family-sponsored and employment-based preference categories must use the final action dates or the dates for filing. In this article, we will explain how to use the charts, the differences between the charts, and where you can find more information on our website.