"Adjustment of Status" ("AOS") is a process that permits certain people in the United States to apply for lawful permanent resident ("green card") status without having to go abroad. Not everyone qualifies for this procedure. Those that do must apply with an office of the U.S. Immigration and Naturalization Service ("CIS") and all further processing will be done by that agency.

Eligibility

The basic grant of legal authority for adjustment of status is found at Immigration and Nationality Act, Sec. 245. [8 U.S.C. 1255], which provides in subsection (a):

(a) The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if



1. the alien makes an application for such adjustment,
2. the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
3. an immigrant visa is immediately available to him at the time his application is filed. [Emphasis added]

The first thing to understand about adjustment of status is that not everyone is eligible. Subsection (c) of that same section provides that the following classes of people shall not receive adjustment of status:

1. alien crewmen;
2. anyone (other than "immediate relatives" as that term is specially defined), who continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States;
3. any alien admitted in transit without visa under section 212(d)(4)(C);
4. an alien (other than an immediate relative) who was admitted as a non-immigrant visitor under the visa waiver program;
5. aliens who are deportable under section 237(a)(4)(B);
6. any alien who seeks adjustment of status to that of an immigrant through an employment based preference and is not in a lawful non-immigrant status; or
7. any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3), or who has otherwise violated the terms of a nonimmigrant visa.

Discretionary Denials

The second thing to understand about AOS is that it is discretionary, not mandatory. It is possible for a person who is technically eligible for immigrant status to nonetheless be denied adjustment of status in the exercise of discretion. The most common instances of such discretionary denials involve cases where the applicant abused the nonimmigrant process.

For example, if a person enters the United States as a visitor, with the obvious intention of applying for immigrant status, their adjustment of status application will be denied in the exercise of discretion.

Applicants for adjustment of status must not only prove that they have been "in status" at all times that they have been in the United States since 1987, but also that they have not acted in bad faith in entering. The Department of State and the CIS use the "30/60" rule when examining events that occur shortly after entry. If a person applies for admission into a school or for a change in nonimmigrant status within 30 days of entry, they are presumed to have acted in bad faith. That is, they had the preconceived intent to make the change and they used an easier to obtain visa in order to evade the normal screening process abroad for the visa they really wanted.

Employment based immigrants only have to prove that their last entry before filing for adjustment of status was lawful and they they have not accumulated a total of more than 180 days out of status since that entry. This benefit is contained in Section 245(k) of the Immigration and Nationality Act. These benefits are not available to family based quota immigrants.

If the application for adjustment of status occurs between 30 and 60 days after entry, no presumption is made, but there is a strong suspicion that the person may have acted in bad faith. The case will be scrutinized carefully. If the application occurs more than 60 days after entry, the presumption is that the applicant acted in good faith. Both the CIS and the State Department reserve the right to re-examine such cases, however, if there is any additional evidence of wrongdoing. If an AOS applicant has anything in his or her past visa history that suggests that he or she may have abused the visa process, or otherwise tried to take shortcuts, the CIS has made it clear that they can and will deny such adjustment applications in the exercise of discretion. Discretionary AOS refusals are not subject to administrative review. While federal court review is theoretically possible, few judges are willing to attempt to substitute their judgment for that of CIS officers in the absence of gross abuse of discretion.

Fees

The filing fee for an application for adjustment of status is $1,010. This includes applications for advance parole and employment authorization. If it is necessary to apply for extensions of advance parole or employment authorization, the filing fees for those extensions are covered in this initial filing fee. 

Advantages of Adjustment of Status

Adjustment of status has three principal advantages:

First, it does not require that the applicant go abroad at any time prior to the grant of lawful permanent resident status. This is vitally important to those applicants who have accumulated more than 180 days in "unlawful status" and would otherwise be subject to a three year exclusion upon their departure from the United States. For such people, who are also eligible to file for adjustment of status under the "grandfathering" provision of Section 245(i) of the Immigration and Nationality Act, this is their only real option. Were they to go abroad to apply for an immigrant visa, they would be subject to the three year exclusion.

The second principal advantage of adjustment of status is that an applicant who requires a waiver of exclusion may remain in the United States while the waiver is being processed. As only a tiny handful of applicants ever require waivers, this is not of great significance to the average applicant. It is, nonetheless, a significant advantage to those who do require waivers.

The third advantage is that "immediate relatives" of U.S. citizens and all employment based applicants may file what is known as a "combined processing" package. This means that they may file the qualifying immigrant preference petition (I-130 or I-140, as applicable) together with the application for adjustment of status. The immediate advantage of this procedure is that it allows the applicant to file for adjustment of status without having to first wait for a decision to be made on the qualifying preference petition.

Disadvantages

There are several significant disadvantages to applying for adjustment of status. First, there is the delay involved in AOS processing. With limited exceptions, over the past twenty five years adjustment of status processing has taken between one and five years, with the average being around two and a half years.  Fortunately, for employment based applicants, it is no longer necessary to remain with the same employer for the entire time it takes the CIS to process their case. Now, after the application for adjustment of status has been on file for at least 180 days, the applicant may changes jobs or employers, provided he or she remains in the same or a similar occupational classification.

A second disadvantage to adjustment of status, and one flowing from the processing delays that presently exist, is the cost. The CIS filing fee for adjustment of status is $1,010. The Department of State filing fee for consular processing is $400.

A third disadvantage of AOS is the discretionary decision making authority of CIS officers. Where one officer may see nothing, another may see preconceived intent or presumed fraud. In such case, the officer has the discretionary authority to deny the adjustment of status application. This is very similar to the authority of consular officers deciding nonimmigrant visas (consular officers do not have similar authority when they decide immigrant visas).

A fourth and final significant disadvantage to AOS processing involves the legal grounds for denying an application. Anything that would result in a denial of an application for an immigrant visa at a consular post abroad automatically requires a denial of an application for adjustment of status in the United States. In addition, there are several independent grounds that require the denial of an AOS application, but not the denial of a consular immigrant visa application. For this reason, on a per capita basis, denials of adjustment of status applications were about fifteen times greater than denials of consular immigrant visas during fiscal year 1998. For the first three quarters of fiscal year 1999, the number of per capita denials has grown to twenty five times greater.

One of the greatest and most persistent myths about adjustment of status processing is the belief that if an AOS application is denied, the applicant can easily return to non-immigrant status and go on as if the AOS application had never been made. This is simply not true. If a person is denied AOS because of serious personal misconduct, they may well be taken into custody immediately and held until they can be physically removed. Even when this is not the case, and a denied applicant is not taken into custody, he or she must leave the United States within a very short period of time and will find it extremely difficult to ever return. It is the extremely rare case in which a denied AOS applicant is allowed to remain in the U.S. or easily re-enter.

Dependants

The person who qualifies as an immigrant is know as the principal applicant. All qualifying dependants of the principal applicant are entitled to apply for adjustment of status as well. A qualifying dependant is defined as the spouse or unmarried child (under the age of 21) of the principal applicant. In some cases, dependants may apply after the principal applicant.

Filing

For those who are eligible, and who wish to use this procedure, adjustment of status involves filing a package of documents with the United States Immigration and Naturalization Service ("CIS"). Employment based applicants must file by mail with the CIS regional service center having jurisdiction over them. Family based applicants must file with the CIS local district office having jurisdiction over them.

Employment Authorization

Applicants for adjustment of status may also ask for an employment authorization document ("EAD"). When approved and sent to the applicant, an EAD permits the holder to work for any employer. EAD cards are valid for a period of one year, but may be renewed as many times as necessary during the time that the applicant's adjustment of status application is pending.

Advance Parole

Some applicants for adjustment of status may also apply for and receive advance parole (permission to travel abroad). The law provides that, with limited exceptions, any adjustment of status applicant who departs from the United States without having already been grated advance parole is deemed to have abandoned his or her adjustment of status application. Not all applicants are eligible for advance parole. For those that are, special rules apply as to how and when they may travel. Some adjustment applicants (holders of valid H or L visas) do not require advance parole to travel abroad. Advance parole is granted for periods of one year at a time and may be renewed as many times as necessary during the time the adjustment of status application is pending. Current CIS policy provides that all adjustment applicants who are eligible for advance parole shall be granted this benefit, irrespective of their reason for traveling abroad.