Adjustment of Status for Immediate Relatives

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The law makes special provision for immediate relatives of United States citizens. An "immediate relative" is a parent of a U.S. citizen 21 year or older, a spouse, or an unmarried minor child of a U.S. citizen. Immediate relatives are exempt from the general rule that adjustment of status (AOS) applicants must show that they have always maintained lawful status in the United States for all visits. Rather, immediate relatives must only show that they entered the United States lawfully as a nonimmigrant or a parolee. Even visa waiver entries, which normally prohibit change or adjustment of status, still qualify for adjustment of status for immediate relatives.

Often, when an immediate relative enters the United States as a nonimmigrant, and then applies for adjustment of status, questions arise as to the issue of "preconceived intent." Normally when a nonimmigrant enters with the preconceived intent to adjust status, the immigration service will deny the application for adjustment of status as a matter of discretion. There is, however, a precedent decision, Matter of Cavazos, which holds:

"Where a finding of preconceived intent was the only negative factor cited by the immigration judge in denying the respondent's application for adjustment of status as the beneficiary of an approved immediate relative visa petition and no additional adverse matters are apparent in the record, and where significant equities are presented by the respondent's United States citizen wife and child, a grant of adjustment of status is warranted as a matter of discretion."

As a practical matter, "preconceived intent" is never a factor in immediate relative adjustment of status applications.