VI. Adjustment of Status Procedures

Adjustment of Status to Legal Permanent Resident (Green Card)

Originally, the Immigration and Nationality Laws of the United States provided that foreign nationals may only acquire their immigrant visas at a U.S. Consulate (Department of State) abroad. However, since 1952, Congress has allowed individuals who qualify to adjust their status to that of a permanent resident without leaving the United States. "Adjustment of Status" is a legal term that means one changes from another visa or other immigration status to that of a legal permanent resident (green card holder) without departing the USA.

Persons Who Are Eligible:

The Adjustment of Status application is filed by a foreign national who is physically in the United States and who desires to adjust his or her non-immigrant status to immigrant status, i.e. permanent resident status. Once you obtain an approval on your application, you are able to gain permanent resident status in the United States. There are two additional benefits in filing this application in that you may also apply for employment authorization and advance parole (travel document). However, those who have overstayed a prior visa by six months or more should not leave the United States prior to receiving the adjustment of status.

First, U.S. Citizenship & Immigration Services (USUSCIS) must approve an immigrant petition that has been submitted for you, which is usually filed by an employer or relative.

Second, you must obtain a current immigrant visa number through the State Department, even if you are already in the United States.

Third, if you already are in the United States, you may apply for an adjustment to Lawful Permanent Resident. (If you are outside the United States, you will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa.)

You may apply to adjust your status:

Based on an approved I-130 or I-140 immigrant petition; or you are filing this application with a complete relative, special immigrant juvenile or special immigrant military petition which, if approved, would make an immigrant visa number immediately available to you.

Based on a status of being the spouse or child (derivative) at the time another adjustment applicant (principal) files to adjust status, or at the time a person is granted permanent resident status in an immigrant category that allows derivative status for spouses and children.

Based on admission as the fiancé(e) of a U.S. citizen and subsequent marriage to that citizen. You may apply to adjust status if you were admitted to the United States as the K-1 fiancé(e) of a U.S. citizen and you married that citizen within 90 days of your entry. You may not adjust your status if you marry a U.s. citizen other than the person who petitioned for your fiancé(e) visa. If you were admitted as the K-2 child of such a fiancé(e), you may apply based on your parent's adjustment application.

Based on admission as the K3 spouse (or dependent) of a U.S citizen. This is similar to the K-1 visa petition, but is used for a husband or wife who is awaiting their immigrant visa overseas. Rather than waiting a long time for the immigrant visa, they can come to the U.S. on the K3 visa and apply to adjust status in the United States.

Based on asylum status. You may apply to adjust status if you have been granted asylum in the United States after being physically present in the country for one year after the grant of asylum, if you still qualify as an asylee or as the spouse or child of a refugee.

Based on Cuban citizenship or nationality: You may apply to adjust status if you are native or citizen of Cuba who was admitted or paroled into the United States after January 1, 1959, and thereafter have been physically present in the United States for at least one year; or you are the spouse or unmarried child of a Cuban described above, and regardless of your nationality, you were admitted or paroled after January 1st, 1959, and thereafter have been physically present in the U.S. for at least one year.

Based on continuous residence since before January 1, 1972.

Based on applying to change the date your permanent residence began. If you were granted permanent residence prior to November 6, 1966 and are a native or citizen of Cuba, his or her spouse or unmarried minor child, you may ask to change the date your lawful permanent residence began to your date of arrival in the United States or May 2, 1964, whichever is later.

Persons Who Are Ineligible:

You are not eligible for adjustment of status if any of the following apply to you:

You entered the U.S. in transit without a visa.

You entered the U.S. as a nonimmigrant crewman

You were not admitted or paroled following inspection by an immigration officer (entered without inspection EWI).

Your authorized stay expired before you filed this application.

You were employed in the U.S. prior to filing this application, without INS authorization.

You otherwise failed to maintain your nonimmigrant status, other than through no fault of your own or technical reasons, unless you are applying because you an immediate relative of a U.S. citizen (parent, spouse, widow, widower or unmarried child under 21 years old), a K-1 fiancé(e) (or dependent) who married the U.S. petitioner within 90 days of admission, or a K-3 spouse or dependent.

You are an international organization employees or a derivative family member of same.

You are a foreign medical graduate who has not obtained a waiver of the two-year home residency requirement.

You are or were a J-1 or J-2 exchange visitor, are subject to the two-year foreign residence requirement and have not complied with or been granted a waiver of the requirement.

You have an A, E or G nonimmigrant status, or have an occupation which would allow you to have this status, unless you complete Form I-508 (I508F for French nationals) to wave diplomatic rights, privileges and immunities, and if you are an A or G nonimmigrant, unless you submit a complete Form I-566.

You were admitted to Guam as a visitor under the Guam visa waiver program.

You were admitted to the U.S. as a visitor under the Visa Waiver Pilot Program, unless you are applying because you an immediate relative of a U.S. citizen (parent, spouse, widow, widower of unmarried child under 21 years old).

You are already a conditional permanent resident;

You were admitted as a K-1 fiancé(e) but did not marry the U.S. citizen who filed the petition for you, or were admitted as the K-2 child of a fiancé(e) and your parent did not marry the U.S. citizen who filed the petition.

If you were convicted of a crime, unless you apply for and receive a waiver.

If you have worked illegally in the United States (without proper employment authorization), unless you are the immediate relative (spouse, parent child under 21) of a U.S. citizen.

Common Errors When Applying For Adjustment Of Status:

Leaving the U.S. (even with advance parole) when you have overstayed your visa by 180 to 365 days or more and are subject to the 3 to10 year bars to reentry.

Non-payment of federal income taxes.

Failure to disclose previous marriages or previous criminal history.

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Please contact Craig Trebilcock at Shumaker Williams for further details.