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Adjustment of Status to Permanent Resident

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Sep 30, 2019)

What is adjustment of status?

If you are the beneficiary of a classification petition (such as a family-based or employment-based petition), which has been approved by the USCIS, an immigrant visa is immediately available to you, and you otherwise qualify, then you may request to adjust your status to that of a permanent resident (green card holder), while you are still in the United States.

Topic image for Adjustment of Status to Permanent Resident

The benefit of applying for adjustment of status is that you would not need to leave the country and go to a U.S. consulate overseas for consular processing, in order to obtain an immigrant visa.

How do I apply for adjustment of status?

To apply for adjustment of status, you must file an Application to Register Permanent Residence or Adjust Status (Form I-485), together with all supporting materials with either the USCIS or an immigration judge (if you are already in a removal proceeding).

For the application fees that need to be paid to the USCIS or the immigration court, see USCIS Fee Schedule.

To see how long the USCIS would take to adjudicate your application, see USCIS Processing Times.  Note that this timeline does not apply, if you file the application with the immigration judge.

Premium processing is not available for Application for Adjustment of Status.

When should I file an Application for Adjustment of Status (AOS)?

Ordinary, you may file your Application for Adjustment of Status after the classification petition is approved and an immigrant visa has become available to people with your priority date.

If an immigrant visa is immediately available to you, and you are eligible (see below), you may file your adjustment of status application concurrently with the underlying classification petition. This is called “concurrent filing.”  When you utilize concurrent filing, make sure the classification petition and the Application for Adjustment of Status are sent to the USCIS in the same packet.

Under what circumstance is "concurrent filing" available to me?

Concurrent filing is available, when:

  • You are an immediate relative of a U.S. citizen and you live in the United States,
  • An immigrant visa number is immediately available in your classification category. This includes principal and derivative beneficiaries of most employment-based petitions, and special immigrant juveniles (when an EB-4 visa number is immediately available and the USCIS has jurisdiction over the adjustment application),
  • You are a self-petitioning, battered or abused spouse or child of a U.S. citizen, or
  • You are a certain member of armed forces applying for a special immigrant visa under the Immigration and Nationality Act (INA) § 101(a)(27)(K).

Am I eligible for adjustment of status?

You are eligible to file for adjustment of status if a visa is immediately available to you, see Priority Dates & Visa Availability, and

  • You are present in the United States pursuant to lawful admission; and
  • Subsequent to your lawful admission to the United States, you have not, for an aggregate period exceeding 180 days
    • failed to maintain status,
    • engaged in unauthorized employment, or
    • otherwise violated the terms of your immigrant status.
    Note. There are exceptions for immediate relatives of U.S. citizens.  See below.

Who is not eligible for adjustment of status?

A variety of facts and circumstances may render a nonimmigrant ineligible for adjustment of status.  The following nonimmigrants are not eligible to adjust status in the United States:

  • Undocumented immigrants, who entered into the United States without inspection
  • Nonimmigrants who are inadmissible under INA § 212, with certain exceptions, see Grounds of Inadmissibility to the United States
  • Nonimmigrants who have entered the United States without a visa, while in transit
  • Nonimmigrants who have entered the United States or Guam under some visa waiver programs
  • Nonimmigrants who have entered the United States as a crewman
  • Nonimmigrants who have accepted unauthorized employment in the United States (but see the exception, above)
  • K (fiancé) visa holders who are not seeking adjustment on the basis of marriage to their petitioning fiancé
  • Nonimmigrants, other than those seeking adjustment as an immediate relative of a U.S. citizen, who have failed to maintain status as of the application date (other than through no fault of their own or for technical reasons)
  • J-1 & J-2 nonimmigrants who have not obtained a waiver of the two-year foreign residency requirement
  • A, E, and certain G nonimmigrants who have not waived their diplomatic rights
  • Nonimmigrants who are out of status, with the following exceptions, as noted in USCIS Policy Manual:
     
    • Immediate relatives;
    • Violence Against Women Act (VAWA)-based applicants;
    • Certain foreign doctors and their accompanying spouse and children;
    • Certain G-4 international organization employees, NATO-6 employees, and their family members;
    • Special immigrant juveniles;
    • Certain members of the U.S. armed forces and their spouses and children; or
    • Employment-based applicants who meet the INA 245(k) exemption

In some circumstances, immigration laws allow for forgiveness of brief periods of overstaying and unauthorized employment, provided the total of days of such unauthorized conduct does not exceed 180 days.

What are the exceptions (to ineligibility for adjustment of status) for immediate relatives?

If you are an immediate relative of U.S. citizen, you may adjust status in the United States, even if you (a) overstayed your authorized stay in the United States, (b) worked without authorization, (c) went out of status while here, or (d) entered the country under certain visa waiver programs.

However, if you entered the country illegally, see below.

Can undocumented immigrants apply for adjustment of status?

Undocumented immigrants, who have entered the country illegally and without inspection, generally cannot file for adjustment of status.  Limited options may be available. See Adjustment of Status Alternatives for Undocumented Immigrants.

How can my spouse and children receive a green card if they are overseas and I am in the United States?

If you are in the United States and your spouse and unmarried children under 21 are overseas, you may request the USCIS to send their files to the U.S. consulate overseas for visa processing as derivative beneficiaries “following to join.” Note that derivative visas are not available under a limited number of immigrant visa categories.

What happens if one of my children reaches the age of 21 while the application for adjustment of status is pending?

Under the Child Status Protection Act (CSPA), a child will retain the age the child had at the time a petition was filed under certain categories. These categories include:

  • Immediate relatives
  • Direct beneficiaries of family-based preference petitions
  • Derivative beneficiaries of family- and employment-based preference petitions
  • Diversity visa applicants
  • Asylee and refugee derivatives

CSPA became effective on August 6, 2002, and it is not retroactive.  To benefit from this law, the child must remain unmarried.

Can I stay in the United States while a petition for my classification is pending?

If no visa is immediately available to you and you have not filed for adjustment of status, you can stay in the country only if you already are in legal status under some nonimmigrant visa.  Otherwise, you will accumulate days of unlawful presence which may eventually deprive you of the opportunity to adjust status or receive a visa.

Can I stay in the United States while my Application for Adjustment of Status is pending?

If you were in status when you filed for adjustment of status, then you may stay in the United States until your adjustment of status has been decided.

Can I change employers while my Application for Adjustment of Status is pending?

If you are seeking an employment-based immigrant visa based on a petition by a prospective employer, you may change your prospective employer if (a) your Application for Adjustment of Status has been pending for at least 180 days and (b) the new job is similar to the job for which you originally received a labor certificate or I-140 approval. Pursuant to the American Competitiveness in the Twenty-First Century Act, this option has been available since October 17, 2000,

 

Related Topics:

Consular Processing

Priority Date & Visa Availability

Employment While Application Pending

Travel While Application Pending

Consequences of Overstaying

Derivative Beneficiaries

Child Status Protection Act (CSPA)

Change of Address Requirement

 

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