Below are requirements in which a foreign national must qualify before filing for adjustment of status. Please keep in mind that even if you have met all requirements and you are not statutorily barred, USCIS can still deny your application if there are any legitimate reasons, such as misrepresentation, fraud, and/or prior criminal convictions. The requirements for adjustment of status are as follows:

Physical Presence

If the foreign national is in the U.S, they may file an application for adjustment of status, form I-485, based on an immigrant petition (I-130 or I-140), as a refugee or asylee (I-589), or a qualified Public Interest Parole (PIP) status. The immigrant petition or the asylum application must have been approved. As of July 31, 2002, an I-485, if a visa is immediately available based upon the alien's immigrant petition (family-based or employment based petition), then the I-485 may be filed concurrently with the immigrant petition. If the applicant is a PIP parolee, then they must meet the statutory period based on their parolee category. A refugee may file for adjustment one year after arrival and an asylee may file for adjustment of status one year after obtaining an approved I-589 application.

If the foreign national does not reside in the United States, he/she does not file an application adjust status with the USCIS. The U.S. consulate abroad will process the foreign national's immigrant petition. Unless the applicant falls under certain non-immigrant petition, such as an H-1B or an L-1A which are considered dual-purposes visas, or a specialized category for spouses (K-3), the applicant will have to wait in their home country until a visa is available under the applicable category before he/she can come to the U.S. However, the applicant will be granted a green card within 3-4 weeks upon arrival within the U.S.

Visa Availability

As discussed above, an immigrant visa must be immediately available for the alien to adjust his/her status to a permanent resident. Except for applicants who are immediate relatives of U.S. citizens, all other applicants must wait for a visa to be available. For more information, please refer to family-based petition section. For the same reason, applicants that are subject to the numerical annual quota for immigrant visas must also wait until a visa is available based on the applicant's priority date, the date in which the employer either files an I-140 immigrant petition or the date in which the employer files a labor certification (PERM). Some employment based petitions under EB-1 and EB-5, a visa is also immediately available and the adjustment of status application may be filed concurrently with the I-140 immigrant petition for a foreign national worker.

The Applicant Must be Lawfully Admitted

To adjust one's status, the applicant must not be "unlawful" or "Entry Without Inspection," the (EWI). The applicant must have been inspected and admitted in to the U.S. An applicant is "inspected" when they have availed himself/herself to an immigration officer at a U.S. port of entry (POE) and was admitted. An applicant is admitted when an officer has informed them that he/she is allowed to enter the U.S. An issuance of an I-94 or a stamp in the alien' passport is an indication that the foreign national has been admitted legally. Under the LIFE Act of 2000, §245(i) of the Immigration and Naturalization Act (INA), an undocumented foreign national who has an I-130 immigrant petition by a U.S. resident or U.S. citizen or a labor certification application filed by a U.S. employer on or prior to April 30, 2001, may apply for adjustment of status. The undocumented foreign national must wait until a visa is available under the employment-based petition and pay $1000.00 penalty to USCIS. Additionally, an unlawful immigrant may apply for cancellation of removal under INA § 240A(b), 8 U.S.C. § 240A(b), if the undocumented foreign national has been ordered to appear in an immigration court for removal proceedings. If the application for cancellation of removal is approved, the foreign national may also file to adjust to a lawful permanent resident.

There must not be any change of circumstance from the date in which the I-130 and/or I-485 application is filed to the date of approval that would disqualify the applicant. A change in circumstances could detrimentally alter a foreign national's eligibility for adjustment of status. Following are some examples on how changes of circumstances may affect the applicant's ability to adjust status to a permanent resident.

• Example 1: An I-130 petition for alien relative was filed by a U.S. citizen parent for an unmarried child under 21, which would make the child an immediate relative at the time of filing.
  • Scenario 1 - The child turned 21 prior to obtaining an approval of an immigrant visa or an application for adjustment of status. Previously, the child would have been considered "aged out." Here, even though there is a change of circumstances which would make the child not qualified under as an immediate relative, the Child Status Protection Act of 2002 protects children under these circumstances and allows them to be processed as an immediate relative.
  • Scenario 2 - The child got married prior to receiving an approval for an I-130 petition for an alien relative or an I-485 application for adjustment of status. In this case, there is a change of circumstance that results in a change of category from an immediate relative to a non-immediate relative under the 3rd preference. The U.S. citizen parent must send a letter of notification of change of status to the USCIS or to the U.S. Consulate, depending on the status of the application. Such letter must address and include the child's spouse and his/her dependents. One positive note is that the child will retain the priority date in which the original I-130 was applied, saving a few months from the application process. On the other hand, the foreign national child must now wait for a visa is available under the 3rd preference for the entire family to come to the U.S.
  • Scenario 3 - After the application was filed but prior to an approval of the I-130, the U.S.C. parent passed away. In this unfortunate scenario, the child no longer has any status to come to the U.S. Because the qualifying petitioner, the U.S. citizen parent, no longer exists, and the application will be dismissed. One parent may not "substitute" for the deceased parent. Because of this reason, our attorneys at Smith & Garg, LLC often advise both elderly parents to apply for the same beneficiary. This is the only way to secure a priority date for the foreign national child if and when such unfortunate incident occurs.

• Example 2: An I-130 petition for an alien relative was filed by a U.S. citizen husband for an alien spouse.
  • Scenario 1 - After the application was filed but prior to an issuance of an immigrant visa by the U.S. Consulate Office, the U.S. husband finalized a divorce in the U.S. The immigrant petition will be denied or dismissed because the spouse's status has changed. The foreign national spouse no longer has any qualification to come to the U.S. even though she was qualified as an immediate relative at the time of filing. There is no law to protect the spouse in this case as under Scenario 1 based on the Child Status Protection Act of 2000.
  • Scenario 2 - After the application was filed but prior to an issuance of an immigrant visa by the U.S. Consulate Office, the couple separated and become estranged, regardless of whether they are legally separated or not. Based on the facts above, the foreign national spouse may still immigrate to the U.S. The issue here is whether it was a good-faith marriage or was it a fraud. The Service and the Consulate Office will scrutinize the facts to determine if there is a bona fide marriage. If the U.S. Consulate determines that the foreign national spouse and the U.S. citizen had a bona fide marriage, the foreign national spouse will still be granted an immigrant visa.
  • Scenario 3 - The foreign national spouse is in the United States. After the I-130 petition was approved and the foreign national spouse was granted a temporary condition green card. The foreign national spouse is required to file for an application to remove the conditions two years upon approval, the I-751. However, the couple divorced within this two years period. The INA requires that the application to remove a conditional residency is jointly filed by both spouses. However, in this situation, the foreign national spouse may file a waiver. The waiver must show that the foreign national was not at fault for the break-up of the marriage and that the marriage was not a fraud. USCIS will scrutinize the facts to determine whether the marriage was for the convenience of obtaining a green card. Foreign nationals under this category are advised to contact a reputable immigrant attorney for assistance in filing the I-751 application.

To adjust one's status, the foreign national must not fall under one of the categories that are statutorily (by law) barred from adjustment of status. Congress enumerated certain categories and prohibits such foreign nationals to adjust status to become permanent residents. In some instances, waivers may be available depending on the applicants' background and information. The statutory bars are as follows:

• Unauthorized Employment, Unlawful Status, or Failure to Maintain Status - Foreign nationals who are employed without an employment authorization, not in lawful status at the time of filing of the adjustment application, or have failed to continuously maintain status for even a single day since their entry into the United States are barred from adjustment of status.
  Exception:
  • Immediate relatives (spouses, parents and unmarried children under 21-year old) of U.S. citizens are still eligible to adjust their status under Section 245(a).
  • If the violation of status is in effect a "technical violation" which is not due to the applicant's own fault, the foreign national may still adjust his/her status. Employment-based immigrants who have been out of status no more than 180 days in the U.S. are still eligible to adjust; or
  • The 245(i) exception, the LIFE Act, is available for those that qualify (See above)
• Exchange Visitors With J Visas - J non-immigrant status holders are subject to the two-year foreign residence requirement. They will be barred from adjustment if they have not completed their two-year foreign residence requirement. The bar may be waived upon filing an application for a J Visa Waiver. The waiver will allow the applicant to remain in the U.S. and not have to return to their home country prior to filing the application for adjustment of status.
• K-1 Fiancé Visas - K-1 visa holders may only marry the sponsor U.S. citizen within 90 days from entering into the U.S. If the foreign national married a different person, regardless of that person's status, the applicant is still barred from adjustment of status.
• Foreign Nationals That Are Considered A Public Charge - A foreign national is considered to be a "Public Charge" if they will be likely to depend on the U.S. government or its agencies for medical and/or financial assistance. The adjustment of status applicant must demonstrate that such applicant and/or the sponsoring U.S. citizen or permanent resident are able to financially support them. Form I-134 must be filed in conjunction with form I-485 application for adjustment of status.
• Foreign Nationals Who Are In Removal Proceedings And Subsequently Marry A U.S. Citizen Or Permanent Resident - In these instances, there are rebuttable presumptions that the marriages were entered into out of convenience. That is, the marriages were not entered as good faith marriages. However, the presumption may be rebutted if the applicant can show that the marriage was a bona fide marriage. Affidavits from friends, family, relatives, a church or other religious organization, or public officials, as well as evidence of domicile, can be presented at the removal hearing.
• Foreign Nationals Who Entered Under Visa Waivers - Foreign Nationals who are admitted in a Visa Waiver, the Visa Waiver Pilot Program under section 217 of the Immigration and Nationality Act, or under the Guam Visa Waiver Pilot Program under section 212(1) of the Act are barred from adjustment of status. However, this bar does not apply to persons seeking adjustments as spouses or unmarried minor children of U.S. citizens. Furthermore, the 245(i) exception is also available for those that qualified.
• Crewmembers With D Visas - Crew members who entered the U.S. under a D visa are precluded from applying for an adjustment of status. However, the 245(i) exception is available for those that are qualified.
• Transits Without a Visa - Foreign nationals in transit without a visa, traveling through the U.S. to another country, are barred from adjustment of status. However, the 245(i) exception is also available for those that are qualified.

Application for Adjustment of Status Based on An I-130 Petition by a U.S. Citizen Relative

An application to adjust status may be applied if the foreign national is currently in the United States. If the applicant is abroad, they will go through immigrant consular processing. If an immigrant visa is issued by the U.S. Consulate Office abroad, a green card will be issued within 3-4 weeks after arrival.

An I-485 application for adjustment of status may be applied concurrently as a petition for an immediate relative (spouses, parents, and unmarried children under 21 of U.S. citizen). Filing an I-130 petition will toll the period in which the foreign national must maintain legal status in the U.S. under other categories. For example, if an applicant arrived in the U.S. under an F-1 student visa and their F-1 status has expired for one month, then the applicant married an U.S. citizen and subsequently filed an I-130 petition and an I-485 application, the filing date of the I-130 petition will toll the number of days that could considered as an "over-stay."

Application for Adjustment of Status Based on An I-140 Petition by an Employer

Employment Based preference 1 through 3 may file an I-485 application for adjustment of status for the beneficiary employee at the same time as the I-140 petition, if a visa is currently available at the time of filing. If a visa is not available, as is often the case with employment based third preference, the applicant must wait until such visa is available. The waiting period is dependent on the number of applications the USCIS receives in the particular year and the availability of visas. Often, there are more applications than the available number of visas. The filing of the I-140 application by an employer on behalf of the foreign national worker will also allow the applicant to stay in the U.S. while the I-140 petitions or I-485 applications are pending. If the person's work visa is running out (i.e. the person is at the end of the statutory period under the work visa to remain in the U.S.), the person may apply for extension while waiting for the decision of the Service, or apply for employment authorization if the applicant is waiting for adjustment of status.

Application for Adjustment of Status by a Public Interest Parolee (PIP)

A "Parolee" is a foreign national who was granted permission to enter the U.S. for humanitarian or public interest reasons. Parolee statuses are granted at the discretion of the U.S. Attorney General and may be revoked at any time. A person granted parolee status under section 212(d)(5) of the INA does not qualify as a refugee. Section 586 of the Foreign Operations, Export, Financing and Related Programs Appropriations Act of 2001 allows Cambodian, Laotian, and Vietnamese nationals who were paroled into the U.S. as public interest parolees (PIPs) to adjust their status to lawful permanent residents. The applicant must be "inspected and paroled into the United States before October 1, 1997 and were physically present in the United States on October 1, 1997." The original law limited 5,000 parolees to adjust and set a limit of 3 years to file for adjustment after the date the Attorney General issued "implementing regulations." On December 8, 2004, the Consolidated Appropriations Act (Public Law No. 108-447) was signed into law. Section 534 of the Act eliminated the 5,000 limit and the three-year deadline set by the original law. Therefore, essentially, all parolees from Cambodia, Laos, and Vietnam who were paroled into the United States on or before October 1, 1997 will be able to adjust their status to become permanent residents. Those that entered the U.S. after October 1, 1997 will maintain their parolee status and may be revoked by USCIS at any time. Unfortunately, parolees who entered after October 1, 1997 will be vulnerable until new regulations that would allow them to adjust their status are passed.

Application for Adjustment of Status for A Refugee/Asylee

First, a foreign national who entered the U.S. with an I-94 or stamp on their Passport as a "Refugee" may adjust their status after one year from the date of entry. Foreign nationals who entered the U.S with an I-94 or stamp on their passport as an "Asylum Parolee" may adjust their status after an I-589 application has been approved. Foreign nationals who entered the country, either as documented or undocumented, who then filed an asylum application, form I-589, with the USCIS or with immigration court, may apply to adjust their status once their asylum applications have been approved.

The USCIS will review an applicant's background and status to determine whether the person is authorized to remain in the U.S. each time they file an application for adjustment of status (form I-485), application to renew an expired green card (Form I-90), and an application to remove conditions of a residence (I-751), or naturalization (N-400). Thus, all applicants, permanent residents as well as non-immigrants, should consult an immigration attorney prior to filing their applications, especially those with past criminal convictions. Certain criminal convictions, though seemingly minor to a lay-person, under the INA law could make the applicant removable (deportable) or barred from applying for adjustment of status. An experienced attorney may be able to guide the applicant and apply for waivers and/or cancellation of removals to avoid a negative outcome.

Please contact one of our immigration attorneys at Smith & Garg, LLC for more information and assistance in filing your adjustment of status or other immigration applications.

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