Immigration Information FAQ: Adjustment of Status

FAQ: Adjustment of Status

Q:	What is adjustment of status?

A:	Adjustment of status ("AOS") is a procedure that allows an eligible applicant to become a lawful permanent resident of the United States without having to go abroad and apply for an immigrant visa.

Q:	Do I have to be in the United States to apply for AOS?

A:	Yes. It is impossible to apply for adjustment of status from abroad. A person abroad who wishes to apply for lawful permanent residency in the United States must apply for an immigrant visa at the U.S. consular office having jurisdiction over their place of residence.

Q:	Are there any preliminary steps, or can I just file for AOS directly?

Immediate relatives of U.S. citizens may file for AOS at the same time that the U.S. citizen petitioner files his or her immediate relative petition. Everyone else must first have an immigrant preference petition filed and approved on their behalf before they are eligible to apply for AOS. Even after the petition has been approved, it is not possible to apply for AOS until the applicant's "priority date" is current for their immigrant preference category and country. When all of these conditions have been met, it is then possible to apply for AOS.

Q:	Where should I file my application for AOS?

Currently, the I.N.S. is in the middle of a transition between processing adjustment cases at the local district offices and moving that processing to the four regional service centers. At the present time, family based AOS applications are still filed with the local district offices, while employment based cases are filed directly by mail with the appropriate service center having jurisdiction over the place where the applicant lives.

Q:	What are the grounds of exclusion?

The immigration laws of the United States provide that certain classes of people may not enter this country. Collectively, this is known as exclusion or inadmissibility. These rules were established to protect society from undesirable elements (commercial vice), health risks (people who have dangerous communicative diseases), people who will be a drain on the public treasury (public charge), and people who are a threat to society (criminals and terrorists). In addition, there are grounds of inadmissibility that punish people who are presently violating or who have in the past violated the immigration laws of this country. An applicant for immigrant status must establish that he or she is not subject to any of these grounds before immigrant status may be granted.

Q:	What documents constitute an application for AOS?

The I.N.S. forms that constitute the core of an AOS application are: I-485, and G-325A (the last form is only required of applicants 14 years of age and older). In addition, the applicant must submit the results of a medical examination, a certified copy of the applicant's record of birth, a copy of the applicant's arrival document (form I-94), two "green card" style photographs, and evidence that the applicant is not likely to become a public charge. If applicable, the applicant must also submit copies of all marriage certificates, divorce decrees, death certificates (of former spouses), birth certificates of all children, and certified copies of any and all arrests and criminal court records. All documents written in languages other than English must be translated into English.

Q:	What if I entered the U.S. legally but remained here illegally?

Current law provides that with limited exceptions, any person who has ever violated their nonimmigrant status is ineligible for adjustment of status. The three principal exceptions are:

Immediate Relatives. Anyone who is an immediate relative of a United States citizen, but who has violated their status in the past, is still eligible to apply for adjustment of status.
Less than 180 days. Anyone who has overstayed the permitted stay by less than 180 days, and who has not been unlawfully employed during that time, may still apply for adjustment of status.
"Grandfathered Sec. 245(i). Anyone who filed a labor certification or immigrant preference petition before January 14, 1998 may apply for adjustment of status by paying a fine of $1,000.
All others must go abroad and apply for an immigrant visa through a United States consular post.

If a person applies for adjustment of status, the I.N.S. will presume that there was an unlawful stay and it will be the burden of the person applying to prove that they complied with the law at all times.

Q:	What goes on at an adjustment of status interview?

By the time an applicant gets to an adjustment of status interview, almost all of the work has been done and the interview itself is pretty much a formality. It is for this very reason that the I.N.S. is moving toward processing most adjustment of status applications on an "interview waiver" basis. The purpose of the interview is to make certain that all of the information contained in the application is correct, and also to resolve any last minute questions or doubts that the examiner may have before closing out the case.

The part of the interview that can be regarded as a "formality" involves checking to make sure that the applicant agrees that all of the information contained on the form is correct and, if it is not, correcting it. For example, many applicants move between the time they file and the time of the interview. When this happens, the I.N.S. examiner will correct the form to reflect the new (correct) address. In other cases, the applicant will discover that he or she made a mistake on the form. Again, the examiner will correct the form to reflect the actual facts.

Once the form has been reviewed and found to be accurate by the applicant, the examiner will move on to resolve any questions or doubts that he or she may have. For example, in the case of an application based on a job offer, the examiner may want to see evidence that the applicant is actually working in that job and earning the salary shown in the application. In such a case, the examiner has the right to request evidence showing that the applicant has been paid the offered salary since he or she started working for the petitioning employer.

In marriage based cases, there is usually a question as to whether the marriage was entered into because the couple wanted to live together as husband and wife, or because the U.S. citizen or lawful permanent resident spouse wanted to help the alien spouse evade the immigration laws. Examiners usually want to see persuasive documentary evidence that the couple has been living together since getting married (or they have a very good reason for living apart), and that they have commingled their financial affairs. Couples that have entered into good faith marriages have little to fear from this inquiry and usually are able to produce the required documents with little difficulty.

One important aspect of an adjustment interview involves determining whether the applicant may be subject to one or more grounds of exclusion. If so, then the proceedings will be halted until a further investigation can be made. If not, the case will proceed.

Finally, if the applicant claims to have always been in lawful status while in the U.S., the examiner will expect to see evidence of lawful INS status, together with evidence of financial support or lawful employment authorization. If the applicant is unable to satisfy the examiner on this point, he or she will have to pay the $650 fine that status violators are required to pay in order to adjust their status in the U.S.

At the end of the interview, the case will either be closed out or continued. If it is closed out, the examiner will place a temporary "green card" stamp in the applicant's passport. This stamp is the equivalent of the permanent "green card" and is given to new residents so that they may travel immediately and not have to wait until the permanent card arrives in the mail two to four months later.

If the case is continued because additional documents are needed, the examiner will give the applicant a written description of the documents that are required to complete the adjudication of the case. The applicant should obtain those documents and then turn them in, together with the examiner's list, to the office where the interview was held. With luck, the case will then be closed out and the applicant will receive written notification of the decision in the mail. Unfortunately, this is where most cases break down. Most INS offices have no system to assure that these continued cases are ultimately closed out and the just sit around until either a Congressional office or an attorney gets involved.

Q:	What happens if my visa category is "unavailable" when I have my adjustment of status interview?

The regulations of the C.I.S. provide that no one may file an application for adjustment of status unless a visa is immediately available for their preference category. Many people worry about what will happen if visas subsequently become "unavailable" after the application is filed, but before the interview. This is something that happens to at least some applicants every year, usually in the last quarter of the fiscal year (July, August, September).

If a visa is not available, due to quota limitations, at the time of the interview, the I.N.S. will "continue" the case until a visa number is available. This means that they will proceed with the interview and complete all processing on the application. The file will be returned to the file room to await availability of a visa. Hopefully, the C.I.S. officer will remember to review the case after the first of the new fiscal year and complete the processing. Unfortunately, few C.I.S. district offices are sufficiently well organized to bring such cases up for review automatically. This means that these types of cases will sit around for up to a year, awaiting action.

Q:	What if I need to travel after I file for adjustment of status?

Under current rules, once a person files for adjustment of status, he or she may only travel abroad under a grant of advance parole. If a person leaves the United States after filing for adjustment of status, without advance parole, the application is deemed automatically abandoned.

To assure yourself of the freedom to travel after filing for adjustment of status, you should apply for advance parole concurrently with adjustment of status. If you do not file for advance parole with your adjustment of status application, and you wish to have it later, then you must file an application with the office holding your adjustment file.

Advance parole may be requested on form I-131.

Q:	Do I need to apply for employment authorization?

Once you file for adjustment of status, there is no penalty imposed on you if you work without authorization. Your employer, however, can and will be fined for employing you without authorization. If you have existing employment authorization (in the form of a nonimmigrant visa that permits you to work), then you may not need to apply for an Employment Authorization Document (EAD)

If you travel outside the U.S. on advance parole, you must have a valid EAD before you may lawfully work when you return. No matter what your nonimmigrant visa status, when you return, you will not have that status, you will be allowed back as an advance parolee. Your former nonimmigrant status will no longer be valid.

If you apply for and receive an EAD, then you will have unrestricted authorization to work and you may work for anyone.

Q:	What about an extension of employment authorization?

To be absolutely safe, apply for an extension of your EAD more than 90 days before your current EAD expires. The regulations (at 8 C.F.R. 274A) provide that if an EAD extension is not adjudication within 90 days, it is automatically extended for 240 days, or until a decision is made, whichever comes first. Thus, if you apply for your extension more than 90 days before your current EAD card expires, you are safe no matter what happens.

Apply for an extension of your EAD by filing a new form I-765 with the CIS office that has your adjustment of status file.

Q:	Why shouldn't I just remain in nonimmigrant status?

If you are not planning to travel, or change employers (or moonlight with another employer), then there may be no reason to apply for an EAD. On the other hand, there is no harm in applying for advance parole and an EAD and there is no real reason to try to maintain nonimmigrant status after filing for adjustment of status.