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Adjustment of Status

Written by Henry J. Chang

General Requirements

Adjustment of status refers to the procedure for becoming a lawful permanent resident without having to leave the United States. It should be distinguished from the traditional method of gaining permanent residence, which involves applying for an immigrant visa at a consular post abroad.

Adjustment of status is discussed at §245 of the Immigration and Nationality Act ("INA"). According to INA §245(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.

Inspection and Admission or Parole

Basic eligibility for adjustment of status requires the applicant's prior inspection and admission or parole into the United States. The USCIS officer must have a "full and fair opportunity" to conduct the inspection before the alien is considered "inspected". An alien who enters based on an intentional false claim to U.S. citizenship has not been inspected. However, an alien who presents himself or herself for inspection before a USCIS officer as a passenger of a car will be considered "inspected" even where the USCIS officer does not question anyone in the car other than the driver. "Admission" occurs when the inspecting officer informs the applicant that the applicant is admissible and the applicant is permitted to pass through the port of entry. Generally, the alien's I-94 and/or the USCIS stamp in the alien's passport are proof of inspection and admission. However, a sworn affidavit or a copy of the alien's airplane ticket may be used where an I-94 or admission stamp is not ordinarily issued to the alien (i.e. visa-exempt aliens).

Immediate Availability of an Immigrant Visa

An immigrant visa must be immediately available to the alien at the time his or her application for adjustment is filed. The Department of State Visa Bulletin shows the priority date for each immigrant category. If an adjustment application is properly filed at the time that the individual's visa priority date is current but the priority subsequently retrogresses before the case is adjudicated, the adjustment cannot be completed. However, the applicant will be permitted to remain in the United States until the priority date becomes current again, provided that he or she remains eligible for adjustment.

Statutory Bars to Adjustment of Status

The INA lists several categories of aliens to whom adjustment is legally unavailable, which are discussed below:

Foreign National Crewmen

Those who, at the time of arrival, were serving in any capacity on board a vessel or aircraft or were destined to join a vessel or aircraft in the United States to serve in such a capacity are barred from adjustment of status.

Transits Without Visas ("TWOV")

Aliens who are in immediate and continuous transit through the United States to a foreign destination, in accordance with the terms of an agreement entered into between the transportation line and USCIS, are not eligible for adjustment of status.

Aliens Who Entered Under Visa Waivers

An alien (other than an immediate relative) who was admitted as a nonimmigrant visitor without a visa under section 212(l) [visa waiver for B-1/B-2 admission to Guam] or section 217 [visa waiver program] is barred from adjustment of status.

Aliens Who Have Conditional Residence

Aliens who were admitted for permanent resident status on a conditional basis either as spouses whose marriages are less than 2 years old at the time of admission as conditional residents or as immigrant investors (entrepreneurs), are ineligible for adjustment of status. However, once conditional residence is terminated, the bar is lifted.

K-1 Fiances

Aliens who are admitted on a temporary basis under the K-1 category for fiances may only be adjusted to permanent residence on a conditional basis, and only where the adjustment is a result of the K-1's marriage to, and immigrant visa petition by, the United States citizen who filed the petition to classify him or her as a K-1.

Unauthorized Employment, Unlawful Status or Failure to Maintain Status

Aliens who have engaged in unauthorized employment, who are not in lawful status at the time of filing of the adjustment application or who have failed to continuously maintain status since their entry into the United States are barred from adjustment of status. However, this statutory bar does not apply to immediate relatives of United States citizens or certain special immigrants.

Aliens Who Enter Into Marriages During Pendency of Administrative or Judicial Proceedings

Any alien who marries on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto, is barred from adjustment of status. In addition, the INA prohibits approval of a petition granting immediate relative or preference status based on the marriage until the alien has resided outside the United States for two years after the marriage. Once that foreign residence requirement has been met, the restriction against adjustment does not apply. The USCIS regulations provide for lifting the restriction if the alien is found not deportable or excludable, or if the Service cancels the order to show cause.

Adjustment Under INA §245(i)

Aliens in some of the above categories were previously permitted to adjust their status pursuant to INA §245(i) despite their ineligibility (by paying a penalty fee pursuant to that subsection). INA §245(i) expired on January 14, 1998. However, the recently enacted Legal Immigration and Family Equity Act of 2000 ("LIFE Act") extends INA §245(i) by replacing the old eligibility cutoff date with a new date of April 30, 2001.

This means that eligible aliens have until April 30, 2001 to file an immigrant petition or labor certification application to be eligible to adjust their status in the United States. Under the LIFE Act, INA §245(i) will be available to any beneficiary of a bona fide immigrant visa petition (an I-130, I-140, or I-360) or application for labor certification that is filed on or before April 30, 2001. All qualified beneficiaries will be "grandfathered-in" under INA §245(i) even if they don't actually apply for adjustment of status (by submitting form I-485) until after the April 30, 2001 deadline, as long as a bona fide immigrant petition or labor certification application is filed before that date.

It should be mentioned that the LIFE Act has added a new "physical presence" requirement. Applicants need to prove that they were actually in the United States on the date of enactment (December 21, 2000) in order to be eligible to use INA §245(i). Beneficiaries of immigrant petitions or labor certifications that are filed after the old deadline of January 14, 1998, but before the new deadline of April 30, 2001, will be required to prove that they were physically present in the United States on December 21, 2000.

The INA §245(i) penalty fee is still $1,000USD, and is in addition to any other filing fees levied by USCIS. The $1,000USD fee is paid at the time of filing the Form I-485A, which is submitted along with the standard application for adjustment of status (Form I-485).

Place of Filing

An application for adjustment of status is ordinarily filed with the USCIS district director in the district of the applicant's residence. However, as of November 29, 1996, all adjustment applications that are based on approved employment-based petitions, including those of entrepreneurs and dependents, are to be filed at the regional service centers.

Adjustment of Status is Discretionary

It is important to realize that adjustment of status is considered discretionary. USCIS may still deny an application for adjustment of status even where none of the statutory bars applies.

In practice, adjustment of status will be granted where the alien is statutorily eligible and there are no "negative factors." When such negative factors exist, the factors will be weighed to determine whether adjustment will be granted. Close family relatives, particularly immediate relatives, may be a strong factor favoring adjustment.

Preconceived intent to remain in the U.S. at the time of entry as a nonimmigrant, even though not resulting in fraud or willful misrepresentation, may be a sufficient negative factor to deny adjustment of status. However, immediate relatives of U.S. citizens can overcome such negative factors.

Advance Parole Required to Leave While Adjustment is Pending

According to 8 CFR §245.2(a)(4)(ii), an application for adjustment is considered abandoned if the alien leaves the United States while the application is pending. However, the alien may apply for advance parole prior to departing the United States to ensure that his or her application is not deemed abandoned. Advance parole is available for any legitimate personal or business reason.

Notwithstanding the above, on June 1, 1999, USCIS published an interim rule that allows H-1 and L-1 nonimmigrants (and their dependents) to travel outside the United States without abandoning their applications for adjustment of status, making advance parole unnecessary for these aliens. The interim rule was published in 64 FR 29209.

Ability to Work While Adjustment is Pending

An alien who has filed an application for adjustment of status may apply for an employment authorization in increments not exceeding one year during the period the application is pending (including any period when an administrative appeal or judicial review is pending.) This is an unrestricted employment authorization that permits the alien to work for any employer.

The alien may continue working pursuant to his or her existing nonimmigrant status, if such status permits employment. However, USCIS normally takes the position that, after the application for adjustment of status is filed, the alien has immigrant intent and is no longer eligible for extensions or changes of nonimmigrant status. For this reason, it is advisable to obtain an unrestricted employment authorization in most cases.

As a result of the June 1, 1999 interim regulation (mentioned above), aliens in H-1 or L-1 status (and their dependents) are not precluded from extending or maintaining their nonimmigrant status while their adjustment of status applications remain pending. An alien who continues to maintain H-1 or L-1 status rather than to obtain an unrestricted employment authorization will still retain such status if the adjustment application is denied.

If the alien is required to seek advance parole, he or she should apply for an unrestricted employment authorization. This is because an alien who is "paroled" into the United States is no longer within the nonimmigrant status he or she had before departure. Also, any derivative status of an accompanying spouse or child arising from the principal alien's previous nonimmigrant status is lost once the alien returns under parole.

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