Adjustment of Status
A select few people can apply for their green card without having to leave
the U.S. and visit a U.S. consulate.
This U.S.-based process is known as adjustment of status. Being able to
adjust status means, for some immigrants, the difference between being
able to successfully apply for a green card or not.
Why Is Being Eligible to Adjust Status Important?
For some people, the question of whether they are eligible to adjust status
is as important as whether they meet the underlying eligibility criteria
for a green card. That’s because they have accrued 180 days or more
of “unlawful presence” in the U.S. With unlawful presence
on their record, leaving the U.S. for a visa interview could result in
a bar upon return, for three or ten years (depending on the length of
their unlawful stay). A waiver is available based on extreme hardship
to qualifying family members, but not everyone will qualify for this waiver.
But if the applicant can adjust status, he or she won’t have to depart
the U.S. for an interview at a U.S. consulate abroad. No departure, no
potential time bar upon return. It’s as simple as that.
What Categories of Green Card Applicant Can Use the Adjustment of Status
You can’t just choose to adjust status in the U.S.: You have to be
eligible for adjustment of status (according to Section 245 of the Immigration
and Nationality Act), as follows:
- You must already be eligible for lawful permanent or conditional residence,
perhaps through a U.S. employer, a family member who is a U.S. citizen
or permanent resident , or by having received asylum or refugee status
at least one year before.
- If your eligibility is based on employment or family, you must already
have an approved visa petition (Form I-130 or I-140) on file, and your
priority date, if any, must be current. Priority dates apply to immigrants
in “preference categories” who, because of annual limits on
visas in those categories, must wait until a visa is available before
proceeding with their green card application.
- If you entered the U.S. on a K-1 fiancé visa, you must have married
the person who petitioned for you to receive that visa.
- If your eligibility is based on asylum or refugee status, you must have
waited one year since either your asylum was granted or you entered the
United States as a recognized refugee.
- You must be physically in the United States.
- You must NOT have entered the U.S. as a foreign national crewman, in transit
without a visa ("TWOV"), or under the Visa Waiver Program (VWP).
Special Eligibility Cases: Section 245(i)
A few people who have lived in the U.S. for several years are still allowed
to adjust status based on some old laws called Section 245(i) and the
LIFE Act. If you fit most of the above criteria but are not eligible to
adjust status due to your illegal U.S. entry or other visa or status violation,
these laws let you adjust status, upon payment of a $1,000 penalty fee,
if you were:
- The beneficiary of an immigrant visa petition or labor certification application
(including I-140, I-130, I-360, or I-526) that was filed on or before
April 30, 2001, and
- If the petition was filed between January 14, 1998 and April 30, 2001,
you can also prove that you were physically present in the U.S. on December 21, 2000.