Adjustment of Status – Explained

Adjustment of Status (AOS) is a critical step in the immigration process for many individuals seeking to become lawful permanent residents in the United States. Through Adjustment of Status, eligible applicants can apply for a Green Card without having to leave the country. This process is often utilized by those seeking marriage-based Green Cards, family-based Green Cards, and employment-based Green Cards.

Adjustment of Status vs. Consular Processing

When seeking permanent residence (Green Card) in the United States, there are two main pathways: Adjustment of Status and Consular Processing. It’s important to understand the differences between these two processes to determine the best option for your situation.

Adjustment of Status

Adjustment of Status is the process through which an eligible individual who is already in the United States can apply for permanent resident status without having to return to their home country for consular processing. This process is generally used by individuals who are physically present in the United States and have a valid immigration status or qualify for an exemption. The application is filed with U.S. Citizenship and Immigration Services (USCIS), and the entire process is completed within the United States.

Consular Processing

Consular Processing is the process of applying for an immigrant visa through a U.S. embassy or consulate in the applicant’s home country. This process is used by individuals who are outside the United States or those who are ineligible to adjust their status while in the country. The initial petition is filed with USCIS, but the applicant must attend an interview at a U.S. embassy or consulate abroad to complete the immigrant visa process.

Key Differences

1. Location: Adjustment of Status is completed within the United States, while Consular Processing requires the applicant to attend an interview in their home country.
2. Processing Times: Processing times can vary for both processes, but Adjustment of Status may take longer due to the high volume of applications received by USCIS.
3. Travel Restrictions: During the Adjustment of Status process, applicants must remain in the United States, or they may need to apply for Advance Parole to travel abroad without abandoning their application. In contrast, Consular Processing requires the applicant to travel to their home country for an interview.
4. Appeal Options: If an Adjustment of Status application is denied, the applicant may have the option to file a motion to reopen or reconsider the decision with USCIS. Consular Processing denials can be more challenging to appeal, as consular officers have broad discretion in their decision-making.

Further Reading: Common U.S. Immigration Terms and Their Meanings

Eligibility for Adjustment of Status

To apply for a Green Card through Adjustment of Status, applicants must first meet specific eligibility requirements. These requirements may vary depending on the Green Card category being pursued. Below are some detailed eligibility requirements for AOS.

Valid Immigration Status

Applicants must have a valid immigration status at the time of filing for Adjustment of Status. They must be physically present in the United States and have entered the country legally through inspection and admission or parole. This means they were allowed into the country by an immigration officer, and their entry was properly documented.

Visa Availability

For most Green Card categories, a visa number must be available for the applicant. This means there must be an open slot in the annual visa quota for the applicant’s preference category, and the applicant’s priority date must be current. Visa availability depends on the applicant’s preference category, country of chargeability, and the demand for visas in that category. For immediate family members of U.S. citizens, visa numbers are always available for Green Cards and there is no wait time.

Qualifying Relationship or Basis for Adjustment of Status

Applicants must have a qualifying relationship or basis for applying for a Green Card through Adjustment of Status. Common categories include the following.

Family-Based Green Cards

Applicants must be an immediate relative (spouse, parent, or unmarried child under 21) of a U.S. citizen, or fall under one of the family preference categories (e.g., married children or siblings of U.S. citizens, or relatives of lawful permanent residents). Each preference category has its own set of requirements, and applicants must meet those criteria to be eligible for a family-based Green Card.

Fiancé(e) Visa to Green Card

Another category that allows for the adjustment of status to obtain a Green Card is the Fiancé Visa (K-1 Visa) category. Once the Form I-129F (Petition for Alien Fiancé(e)) is approved, the foreign fiancé/fiancée can apply for a K-1 visa at the U.S. embassy or consulate in their home country. After entering the United States, the couple must get married within 90 days. Following the marriage, the foreign spouse can then apply for Adjustment of Status to obtain a marriage-based Green Card, allowing them to become a lawful permanent resident of the United States.

Employment-Based Green Cards

Applicants must have a job offer from a U.S. employer, and the employer must have obtained an approved labor certification (if required) and filed an immigrant visa petition (Form I-140) on their behalf. The job offer must be for a full-time, permanent position, and the applicant must meet the education, experience, and other requirements for the job.

Humanitarian-Based Green Cards

Applicants must qualify under one of the humanitarian-based immigration programs, such as asylum applicants and refugees, Violence Against Women Act (VAWA) Self-Petitioners, refugees, or victims of certain crimes (U or T visa holders). Each humanitarian category has specific eligibility requirements and processes that applicants must meet and follow to be eligible for Adjustment of Status.

Diversity Visa Lottery

Applicants who have won the Diversity Visa Lottery must meet the education or work experience requirements and be admissible to the United States. Winning the lottery does not guarantee a Green Card, as the number of winners exceeds the available visas. Applicants must act quickly to complete the Adjustment of Status process within the fiscal year they are selected.

Special Immigrant

Applicants must belong to one of the special immigrant categories, such as religious workers, special immigrant juveniles, or certain Iraqi and Afghan nationals who worked for the U.S. government. Each special immigrant category has its own set of requirements, which applicants must meet to be eligible for Adjustment of Status.

Admissibility

Applicants must be admissible to the United States, meaning they do not have any disqualifying factors such as criminal history, national security concerns, or previous immigration violations. Grounds of inadmissibility can include health-related issues, criminal convictions, security risks, public charge concerns, and previous immigration violations like fraud or misrepresentation. In some cases, applicants may be eligible for a waiver of inadmissibility by filing Form I-601 or I-212, depending on the specific ground of inadmissibility.

Affidavit of Support

For family-based Adjustment of Status applicants, a financial sponsor (usually the petitioner) must submit an Affidavit of Support (Form I-864) to demonstrate their ability to financially support the applicant and prevent them from becoming a public charge. The sponsor must be a U.S. citizen or lawful permanent resident, at least 18 years old, and have an income of at least 125% of the federal poverty guidelines for their household size (100% for active-duty military personnel sponsoring their spouse or child).

Please note that the specific eligibility criteria may vary depending on the Green Card category under which the applicant is applying. It is crucial to review the requirements for your particular situation to ensure you are eligible for Adjustment of Status.

Understanding the 90-Day Rule

The 90-Day Rule is an important concept to understand when applying for Adjustment of Status, as it can significantly impact your Green Card application. The rule is a guideline used by U.S. immigration officers to determine whether an individual has misrepresented their intentions when entering the United States on a nonimmigrant visa, such as a tourist or student visa.

Further Reading: Difference Between a Green Card and a Visa

According to the 90-Day Rule, if a nonimmigrant visa holder applies for Adjustment of Status or another immigration benefit within 90 days of entering the United States, the U.S. Citizenship and Immigration Services (USCIS) may presume that the applicant had a preconceived intent to immigrate when they entered the country. This could lead to a finding of misrepresentation or even visa fraud, resulting in the denial of the Adjustment of Status application or other severe consequences, such as deportation.

It’s important to note that the 90-Day Rule is not a hard and fast rule, but rather a guideline for evaluating an applicant’s intentions. However, if you apply for Adjustment of Status after 90 days of entry, the presumption of misrepresentation does not automatically apply, and you may have a better chance of proving that you entered the United States with genuine nonimmigrant intentions.

Adjustment of Status Costs

The costs associated with the Adjustment of Status process can vary depending on the specific forms and services required for your case. Here are some of the most common fees associated with obtaining a Green Card through Adjustment of Status process.

1. I-130 Petition for Alien Relative (if applicable): If you are adjusting your status based on a family relationship, you will need to file Form I-130, which has a filing fee of $535.
2. I-140 Immigrant Petition for Alien Worker (if applicable): If you are adjusting your status based on employment, you will need to file Form I-140, which has a filing fee of $700.
3. I-485 Application to Register Permanent Residence or Adjust Status: The filing fee for Form I-485 is $1,130. Applicants under the age of 14 filing with at least one parent pay $750, while those under the age of 14 not filing with a parent pay the standard $1,130 fee.
4. Biometric Services Fee: A biometrics fee of $30 is required for applicants between the ages of 14 and 78. This fee covers the cost of fingerprinting, photographing, and capturing your signature for identification and background check purposes.
5. I-765 Application for Employment Authorization (if applicable): If you are filing for an Employment Authorization Document (EAD), there is a filing fee of $410.
6. I-131 Application for Travel Document (if applicable): If you are applying for Advance Parole, the filing fee for Form I-131 is $575.
7. Medical Examination: The cost of the required medical examination can vary depending on the physician and location. Generally, the cost ranges from $200 to $500.
8. Translation and Document Fees: If any documents need to be translated, there may be additional costs associated with certified translations.
9. Immigration Lawyer Fees: Hiring an immigration lawyer to assist with your Adjustment of Status process can be beneficial in navigating the complexities of the process. Immigration lawyer fees will vary depending on the complexity of your case and the specific lawyer or immigration law firm you choose.

Please note that fees are subject to change and it is always a good idea to verify the current fees on the USCIS website or with your immigration lawyer. Additionally, fee waivers may be available for certain forms and under specific circumstances.

Steps in the Adjustment of Status Process

Adjustment of Status involves several steps, which must be completed in the correct order to ensure a successful outcome. Here are the general steps involved in the AOS process.

Step 1. Determine Eligibility

Before starting the Adjustment of Status process, applicants must determine if they are eligible for a Green Card based on their specific circumstances, such as their relationship to a U.S. citizen or lawful permanent resident, employment offer, or another qualifying basis for Adjustment of Status.

Step 2. File the Immigration Petition

In most cases, a petition must be filed for a Green Card on behalf of the applicant by a qualifying family member, employer, or another eligible party. For family-based Adjustment of Status, the petitioner files Form I-130, Petition for Alien Relative. For employment-based Adjustment of Status, the employer files Form I-140, Immigrant Petition for Alien Worker. Once the petition is approved, the applicant can move on to the next step.

Step 3. Ensure Visa Availability

Adjustment of Status applicants must wait for a visa number to become available. For immediate relatives of U.S. citizens, visa numbers are always available. For other Green Card categories, applicants must monitor the Department of State’s Visa Bulletin to determine when their priority date becomes current.

Step 4. File Form I-485, Application to Register Permanent Residence or Adjust Status

Once a visa number is available, the applicant can file Form I-485, Application to Register Permanent Residence or Adjust Status. Supporting documents, such as birth certificates, marriage certificates, and police clearance certificates, should be included with the application. Green Card applicants must also submit the required fees with their application.

Step 5. Biometrics Appointment

After submitting Form I-485, the applicant will receive a notice to attend a biometrics appointment at a local Application Support Center (ASC). At the appointment, the applicant’s fingerprints, photograph, and signature will be collected for background checks and to create their green card.

Step 6. Medical Examination

Adjustment of Status applicants must undergo a medical examination by a USCIS-designated civil surgeon. The results of the examination must be submitted using Form I-693, Report of Medical Examination and Vaccination Record. The medical examination ensures that the applicant does not have any health conditions that would make them inadmissible to the United States.

Step 7. Green Card Interview

In most cases, Adjustment of Status applicants will be required to attend an in-person interview at a USCIS field office. During the interview, a USCIS officer will review the applicant’s file, ask questions about their application, and assess their eligibility for Adjustment of Status. The applicant should bring all relevant documents, including their passport, to the interview.

Step 8. Decision

After the interview, USCIS will issue a decision on the applicant’s Adjustment of Status application. If the application is approved, the applicant will become a lawful permanent resident, and their green card will be mailed to them. If the application is denied, the applicant will receive a notice explaining the reasons for the denial and their options for appeal.

Please note that the specific steps and forms involved in the Adjustment of Status process may vary depending on the applicant’s individual circumstances and the category under which they are applying for a Green Card. It is essential to carefully review the requirements for your particular situation and follow the appropriate steps to ensure a successful Adjustment of Status process.

Concurrent Filing

Concurrent filing is a streamlined process that allows certain Green Card applicants to file their Form I-485, Application to Register Permanent Residence or Adjust Status, at the same time as their immigrant petition (Form I-130 or Form I-140). This process can significantly reduce the overall processing time for obtaining a green card.

The following categories are eligible for concurrent filing.

Immediate Relatives of U.S. Citizens

Spouses, unmarried children under the age of 21, and parents of U.S. citizens can file Form I-485 concurrently with Form I-130, Petition for Alien Relative. Immediate relatives of U.S. citizens do not have to wait for a visa number to become available, as these visas are always available for this category for a Green Card.

Certain Employment-Based Applicants

Applicants in the first, second, and third employment-based preference categories (EB-1, EB-2, and EB-3) can file Form I-485 concurrently with Form I-140, Immigrant Petition for Alien Worker, if a visa number is immediately available. Visa availability can be checked in the Department of State’s Visa Bulletin.

To file concurrently, applicants must submit both the immigrant petition and the Adjustment of Status application, along with all the required supporting documents and fees, to the appropriate USCIS office. USCIS will process both applications simultaneously, which can expedite the overall process and reduce waiting times.

Please note that concurrent filing is not available for all categories of applicants. Those who are not eligible for concurrent filing must first have their immigrant petition approved and wait for a visa number to become available before filing Form I-485 for a Green Card. It is essential to verify whether concurrent filing is an option for your specific situation before submitting any applications.

Employment Authorization and Advance Parole

While your Adjustment of Status application is pending, you may be eligible to apply for employment authorization and advance parole. These additional benefits can provide you with the ability to work legally in the United States and travel abroad without jeopardizing your pending Adjustment of Status application for a Green Card.

Employment Authorization Document (EAD)

An Employment Authorization Document (EAD), commonly referred to as a work permit, allows you to work legally in the United States while your Adjustment of Status application is being processed. To apply for an EAD, you must file Form I-765, Application for Employment Authorization, along with the appropriate fee, if required. Once approved, your EAD will be valid for one year and can be renewed until your Adjustment of Status application is approved or denied.

Advance Parole

Advance parole is a travel document that allows you to leave the United States and return without abandoning your Adjustment of Status application for a Green Card. To apply for advance parole, you must file Form I-131, Application for Travel Document, along with the appropriate fee, if required. Once approved, your advance parole document will be valid for one year and can be renewed until your Adjustment of Status application is approved or denied.

Please note that obtaining an EAD or advance parole does not guarantee approval of your Adjustment of Status application. Additionally, certain categories of applicants, such as those with a pending asylum application or those who are in removal proceedings, may face restrictions on their ability to obtain employment authorization or advance parole. It is crucial to consult with an immigration lawyer to understand the specific requirements and potential risks associated with your individual case.

Adjustment of Status Interview Process

The Adjustment of Status interview is an essential part of the AOS application process. During the interview, a USCIS officer will assess your eligibility for a Green Card and verify the information provided in your application. The following steps outline the interview process.

1. Receive the Interview Notice: After filing Form I-485 and completing the biometrics appointment, USCIS will send an interview notice if an interview is required. This notice will provide the date, time, and location of the interview. Ensure that you arrive on time and bring the notice with you.
2. Prepare for the Interview: Gather all required documents, including the originals of any documents you submitted copies of with your application. Review the information in your application, as the officer may ask questions to verify its accuracy.
3. Attend the Interview: During the interview, the USCIS officer will review your application, verify your documents, and ask questions related to your eligibility for a Green Card. This may include questions about your marriage (if applicable), family relationships, employment, and any criminal history.
4. Bring an Interpreter (if necessary): If you are not comfortable with English, you may bring a qualified interpreter to the interview. The interpreter must be fluent in both English and your native language and should not be a family member, petitioner, or beneficiary of your application.
5. Answer Questions Honestly: Answer all questions truthfully and to the best of your ability. Providing false or misleading information during the interview can result in the denial of your application or other immigration consequences.
6. Post-Interview: After the interview, the USCIS officer may approve your application, request additional information, or issue a Notice of Intent to Deny (NOID). If you receive a NOID, you will have the opportunity to provide additional evidence or arguments to address the officer’s concerns.

Working with an immigration lawyer can help you prepare for the interview and address any potential issues that may arise during the process. An immigration lawyer can provide guidance on how to respond to specific questions, ensure that you have all the necessary documents for the interview, and even accompany you to the Adjustment of Status Green Card interview itself. Their expertise and support can help put you at ease and increase your chances of obtaining a Green Card through Adjustment of Status.

Decision on Green Card and Next Steps

After completing the Adjustment of Status interview, you will await a decision on your Green Card application. The following steps outline the decision process and subsequent actions.

Receive the Decision

USCIS will issue a decision on your Adjustment of Status application, typically within a few weeks to several months after the interview. The decision will either approve, deny, or request additional evidence for your application.

1. Approval: If USCIS approves your Adjustment of Status application, you will receive a notice indicating the approval and the Green Card category you have been granted. Your Green Card will be mailed to you shortly after the approval notice.
2. Conditional Green Card: If your marriage-based Green Card is approved and your marriage is less than two years old, you will receive a conditional Green Card, valid for two years. You must file Form I-751, Petition to Remove Conditions on Residence, within the 90-day window before your conditional Green Card expires to become a permanent resident.
3. Denial: If USCIS denies your application for Adjustment of Status, you will receive a notice explaining the reasons for the denial. You may have the option to appeal the decision or reapply for Adjustment of Status. Consult with an immigration lawyer to understand your options and the best course of action.
4. Request for Evidence (RFE): If USCIS requires additional information to make a decision, they will issue a Request for Evidence (RFE). You must respond to the RFE with the requested information within the specified time frame, usually 30-90 days. Failure to respond to the RFE may result in the denial of your application.

Apply for Citizenship

Once you have held your Green Card for a certain period (usually three to five years), you may be eligible to apply for U.S. citizenship through naturalization. Check the eligibility requirements and consult an immigration lawyer for guidance on the naturalization process.

Adjustment of Status Timeline

The timeline for the Adjustment of Status process can vary significantly depending on various factors such as the applicant’s basis for adjustment, the USCIS office handling the case, and current processing times. Here is a general overview of the timeline for getting a Green Card through the Adjustment of Status process.

1. Filing the Initial Forms: After ensuring eligibility and gathering all the necessary documentation, the applicant or their immigration lawyer will file the appropriate forms with USCIS. This includes forms such as the I-485, I-130, or I-140, among others, depending on the applicant’s specific situation.
2. USCIS Receipt Notice: Within 2-3 weeks of filing, the applicant should receive a receipt notice from USCIS confirming that the forms have been received and processing has begun.
3. Biometrics Appointment: Approximately 3-8 weeks after filing, the applicant will receive a notice for a biometrics appointment. This appointment is typically scheduled within a month of receiving the notice and involves capturing fingerprints, photographs, and signatures for background check purposes.
4. Employment Authorization Document (EAD) and Advance Parole (if applicable): If the applicant filed for an EAD and/or Advance Parole, they can expect to receive these documents within 3-6 months after filing, depending on current processing times.
5. USCIS Green Card Interview: The timeline for scheduling an Adjustment of Status interview for a Green Card can vary widely, but generally, applicants can expect to receive an interview notice 6-12 months after filing. The interview is typically scheduled within a month or two of receiving the notice.
6. Decision on the Adjustment of Status Application: After the interview, USCIS will make a decision on the applicant’s Adjustment of Status application. If the application is approved, the applicant will receive their Green Card by mail within a few weeks. If the application is denied, the applicant will receive a notice outlining the reasons for denial and may have the option to appeal the decision.

Please note that these timelines are approximate and can vary depending on a variety of factors. It is important to regularly check the USCIS processing times for the specific forms and service centers handling your case to get the most accurate estimate of your Adjustment of Status application’s processing time.

Common Challenges and Issues

Applicants for Adjustment of Status may face various challenges and issues during the process. Being aware of these potential obstacles can help you prepare and address them effectively.

1. Application Errors and Inconsistencies: Errors or inconsistencies in your Adjustment of Status application can lead to delays, requests for additional evidence, or even denial. Ensuring that all forms and supporting documents are complete and accurate is crucial to the success of your application for permanent residency.
2. Incomplete or Incorrect Documentation: Submitting incomplete or incorrect documentation can cause delays or denial of your application for Adjustment of Status. Ensure that you provide accurate information and submit all required documents.
3. Changes in Personal Circumstances: Changes in your personal circumstances, such as a divorce, job loss, or the birth of a child, can impact your Adjustment of Status application. It is crucial to keep USCIS informed of any changes and understand how they may affect your case.
4. Affidavit of Support: Sponsoring family members may encounter difficulties in meeting the income requirements for the Affidavit of Support for a Green Card. In such cases, obtaining a joint sponsor who meets the financial requirements can help.
5. Medical Examination: Some Adjustment of Status applicants may face issues with the required medical examination, such as missing vaccinations or medical conditions that may affect their eligibility. Address these concerns promptly and follow the guidelines provided by USCIS.
6. Maintaining Legal Status: While your Adjustment of Status application is pending, it is important to maintain your current nonimmigrant status, if applicable. Failing to do so can result in your application being denied or your removal from the United States.
7. Background Checks and Security Clearances: Delays in background checks or security clearances can prolong the application process for a Green Card. While you have limited control over these checks, ensure that you provide accurate information and cooperate with any requests for additional information.
8. Interview Preparation: Applicants may find the interview process challenging, especially if they have limited English proficiency or are unfamiliar with the U.S. immigration system. Thoroughly preparing for the interview, including practicing common questions, can help alleviate stress and improve your chances of success.
9. Inadmissibility Issues: Certain grounds of inadmissibility, such as criminal convictions, immigration violations, or previous removals, can complicate the Adjustment of Status process. Consult an immigration lawyer to discuss potential waivers or other options for addressing inadmissibility.
10. Lengthy Processing Times: Adjustment of Status processing times can vary significantly depending on the Green Card category, the applicant’s country of origin, and the USCIS office handling the application. Be prepared for potential delays and check your case status regularly.

By being aware of these common challenges and issues, you can better prepare for the Adjustment of Status process and increase your chances of success for a Green Card.

Immigration Lawyer Assistance with Adjustment of Status

Navigating the Adjustment of Status process can be complex and time-consuming. An experienced immigration lawyer can provide invaluable assistance throughout the process, ensuring that your application is completed accurately and efficiently. Here are some ways an immigration lawyer can help.

• Assessing Eligibility: An immigration lawyer can evaluate your individual circumstances to determine if you are eligible for Adjustment of Status and advise you on the best course of action.
• Preparing and Reviewing Documentation: An immigration lawyer can help you gather the necessary documents and ensure that your application is complete and accurate, minimizing the risk of delays or denial.
• Advising on Affidavit of Support Issues: If you or your sponsor have difficulty meeting the income requirements for the Affidavit of Support, an immigration lawyer can help you explore alternative options, such as finding a joint sponsor.
• Addressing Inadmissibility Issues: An immigration lawyer can help you identify and address potential inadmissibility issues, including criminal convictions, immigration violations, or previous removals. They can also advise you on potential waivers or other solutions to overcome these obstacles.
• Preparing for the Interview: An immigration lawyer can help you prepare for the Adjustment of Status interview by providing guidance on what to expect, practicing common questions, and advising on how to present your case effectively.
• Monitoring Case Progress: An immigration immigration lawyer can track the progress of your application, ensure that deadlines are met, and address any issues or delays that may arise during the process.
• Assisting with Post-Approval Matters: After your Adjustment of Status application is approved, an immigration lawyer can guide you through the next steps, such as applying for a Social Security number, obtaining employment authorization, or preparing for eventual naturalization.

By working with an experienced immigration lawyer, you can navigate the Adjustment of Status process more efficiently and with greater confidence, increasing your chances of a successful outcome.

If you are considering applying for Adjustment of Status, especially for family or marriage-based Green Cards, it’s essential to have the right guidance and support throughout the process. Our experienced immigration lawyers in Atlanta at Glenn Immigration Law Firm can help you understand the eligibility criteria, navigate the application process, and address any challenges or issues that may arise. Don’t leave your family-based or marriage Green Card application to chance; contact us today to schedule a consultation with attorney Pepper N. Glenn and let us help you become a permanent resident of the United States of America.

Adjustment of Status FAQs

Obtaining a Green Card through the Adjustment of Status process can be complex and may raise many questions for applicants. In this section, we have compiled a list of frequently asked questions about Adjustment of Status to help you better understand the process, requirements, and common concerns.