Adjustment Of Status
Frequently Asked Questions
Adjustment of status is an application procedure by which a foreign individual goes from having one immigration status (i.e. temporary visa holder) to having the status of permanent or conditional resident (also known as a green card holder). This process is done without the applicant having to leave the United States. A foreign national adjusts their status via an interview at the office of United States Citizenship and Immigration Services (USCIS).
On the other hand, foreign nationals who are living outside of the United States and wish to adjust their status must do so through “consular processing”. The final paperwork and interview are handled by a United States embassy or consulate, most likely in the foreigner’s home country.
The short answer is that it depends. First, it is important to note that green card eligibility and eligibility to adjust status are two different things.
All immigrants who marry a United States citizen become an “immediate relative” and are thus, in theory, eligible for a green card. However, being eligible for a green card does not mean that they are eligible to adjust their status. For example, an individual is not eligible to adjust their status if they entered the United States illegally even if they are married to a United States citizen (subject to some narrow exceptions).
In order to be eligible for a United States green card, the foreign national must meet the following requirements:
- The foreign national must be eligible for a United States green card either through permanent or conditional residence usually through a close family member who is a United States citizen or permanent resident, an employer, or from being an asylee or refugee;
- If the foreign national’s green card eligibility is based on employment or family – the alien must already have an approved visa petition on file, and the priority date must be current (if you have a priority date – this applies to immigrants in “preference categories” who must be on a waiting list before receiving their immigrant visa or green card).
- If the foreign national’s green card eligibility is based on asylum or refugee status – the foreign national must have applied for asylum approval within one year of their entry into the United States;
- The foreign national must be in the United States;
- The foreign national must not have entered the United States as a foreign national crewman, in transit without a visa (TWOV), or under the Visa Waiver Program (although entry with visa waiver program is OK if you are a relative of a United States citizen);
- The foreign national must (with some exceptions) be in valid visa status, and not have stayed past the expiration date of their permitted stay or worked in the United States illegally;
- If the foreign national fits most of the criteria but are not eligible to adjust because of an illegal entry or other visa or status violation, they can, in some instances, apply for a waiver.
If you are not eligible to adjust your status, you may still be able to get a green card through consular processing. Consular processing should not be difficult if you are already outside of the United States. However, if the foreign national has spent more than six months in the United States unlawfully, then the alien will likely face penalties at their visa interview.
This is important information to discuss with your immigration attorney before leaving the United States for a consular interview – particularly because immediate relatives may be able to apply for a “provisional” or “stateside” waiver before leaving the United States, which will avoid being penalized outside of the United States if the visa is denied.
The first form that you need is Form I-485, Application to Register Permanent Residence or Adjust Status.
The following forms will depend on how you are applying for your permanent residence in the United States. If you have not yet received your visa petition approval, you are eligible to file your petition and adjustment applications concurrently.
- If your green card is family based: you’ll submit Form I-130, Petition for Alien Relative along with the appropriate supporting documents;
- If your green card is employment based: you’ll submit Form I-140, Immigrant Petition for Alien Worker
- If your visa petition has already been approved, then simply submit copies of the approval notices along with your Form I-485.
Assuming that you entered the United States legally and are adjusting your status on that basis, you should also include a copy of your Form I-94, Arrival/Departure Record
You must also pay a filing fee and a biometrics (fingerprinting) fee, and submit two passport style photographs, along with a copy of your birth certificate (and certified translation if it is not in English).
Unless you are a refugee, asylee, or a fiancé, you will also need to submit the results of a medical examination performed on Form I-693, Report of Medical Examination and Vaccination Record, by a doctor on USCIS’s official list. Those who have entered on fiancé visas or as refugees do not need to repeat the medical exam, but must now comply with vaccination requirements.
Applicants should also submit Form I-765, Application for Employment Authorization, allowing you to work in the United States. If you think you might travel before your application is decided upon, be sure to submit Form I-131, Application for Travel Document.
Applications based on Fiancé visas must also submit a copy of their marriage certificate.
Family Based immigrants must submit an Affidavit of Support, signed by the petitioner, on Form I-864.
Employment Based immigrants must also submit a letter from their employer stating their position, their salary, along with copies of their pay stubs.
The completed packet of forms, documents, photos, and fees must be submitted to the USCIS office having jurisdiction over the alien’s place of residence.
After you submit your packet, USCIS will review the packet for completeness and if a document is missing, USCIS will return the whole packet for re-filing.
You will be required to visit a local USCIS office within a certain time period to submit your biometric information.
Several months after submitting your packet, USCIS will call you, and in some instances your petitioner for an interview. If you fail to attend your interview, without rescheduling, your application will be denied and you may be removed from the United States.
Bring proper photo identification to your appointment, such as a passport or driver’s license.
During the interview, the USCIS officer will review your application and ask questions to determine your eligibility and your petitioner’s financial ability to support you. If you’re applying based on marriage, you will need to bring evidence to demonstrate that you are genuinely married and currently cohabitating. The interviewer will ask you additional questions about your marriage.
During your first visit, Neal Datta will listen to your situation and create an action plan for you to win your case. The action plan that Neal creates will detail specific steps and dates that you will need in order to prevent being deported and to win your green card. Every situation is unique so to make the most of your time with Neal we suggest sending us an email with details of your case. Your email is completely confidential.