The United States is one of the countries where people around the globe want to work and live. Job opportunities, equality, and respect for human rights have turned the nation into a wonderful destination. Nonimmigrant visa holders seek lawful permanent residency to work and live here indefinitely. The immigration statutes allow temporary residents to adjust their immigration status if they meet the necessary criteria. The key requirements are that you must reside in America and, in theory, qualify for conditional residency.
When looking for legal permanent residency, you are wondering whether to adjust the status within the country or apply for permanent residency through consular processing in an abroad U.S. consular. You can explore any of these options in America, although this blog focuses on obtaining legal permanent residency without leaving the country.
Meaning of Adjustment of Status
Adjusting status means changing from being a visa holder to a permanent resident or Green Card holder if you are on United States soil and qualified for a Green Card. Status adjustment is a sister process for consular processing where you visit your mother country and apply for permanent residency via the overseas United States consulate. Whether your Green Card application will succeed hinges on your ability to adjust your status.
The Importance of Qualifying for an Adjustment of Your Status
In 1997, the United States congress enacted punishment for aliens living in the country without visas, Green Cards, or other necessary paperwork from the immigration office. The punishment involves time bars, whereby if you were on the country’s soil illegally, you are barred from re-entry for a particular duration once you leave, subject to the length of your illegal stay. The time bars are from three to ten years. You can apply for an adjustment if you have accrued at least 180 days of unlawful stay in the country as an employment-based alien. Nonetheless, you could face the time bars, making the question of whether you qualify for status adjustment as critical as whether you are eligible for conditional residency.
When you have a record of unlawful presence in the country, leaving for an overseas country to apply for permanent residency through consular processing could lead to a time bar when you try to return. You can apply for a waiver, contingent on the hardship your eligible family members will undergo when you are barred from re-entering. Nonetheless, you must apply for the waiver before leaving the country if you are eligible.
When you can adjust your status to lawful permanent residence without leaving the country for a meeting in an overseas United States consulate, there is no risk of inadmissibility for a duration ranging from three to ten years. When you are within the country’s soil, you do not risk inadmissibility when you return. However, when you are forced to go overseas for consular processing, you risk being denied entry upon return.
Another importance of an adjustment is that it helps you avoid hefty travel expenses and separation from your family for an extended duration. A status adjustment takes eight to fourteen months which is longer than consular processing. Nonetheless, with consular processing, you will be away from your family. Therefore, status adjustment is a favorable option because you will be with your family in America as you make the application.
Determining Eligibility for Adjusting Your Immigration Status
You can only adjust your status if you are a noncitizen living physically on United States soil and want to adjust your immigration status to lawful permanent residents. To commence the adjustment process, you need not only to be qualified for the process but also to lack bars preventing you from applying for legal permanent residency by adjusting your status.
You Must be Legally Present in the Country
As an alien, you can only apply for permanent residency in America. If you are outside America at the time of application, you will make the application in the United States consulate abroad.
You Should Have Entered America Lawfully
Another qualification for status adjustment is that you enter the country with permission after the border agents inspect and legally admit you. Being inspected involves presenting yourself to an immigration officer at the border or point of entry. Additionally, you are deemed legally admitted if the inspecting officer informs you of the same and allows you to enter the country. Your passport must have the I-94 and the Immigration and Naturalization stamps as proof of legal admission. You must note that even if your visa or other document permitting you to be in the country expires after the lawful admission, you will still be deemed to have legally entered.
Nonetheless, when adjusting the status, you need a valid visa. Additionally, you must not have overstayed your visa or employment without proper documents from the immigration agency.
You Must be Eligible for a Green Card
One key requirement for applying for a legal conditional residence using status adjustment is already qualifying for a Green Card. Some of the individuals eligible for conditional residence are:
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Immediate Family of an American Citizen or Green Card Holder
Immigration laws allow immediate family to apply for conditional residence if their United States citizen relative is willing to accommodate you and offer financial support. You are an immediate family if:
- Your spouse is a U.S. citizen, and the marriage is valid
- You are unmarried, below 21 and one of your parents is a U.S. citizen
- You are an adopted child of a United States citizen or conditional resident
- You are a stepchild or stepparent to a U.S. citizen
- You are a parent whose under 21 child is a citizen
On top of immediate family members, other close family members are eligible for conditional residence, though not immediately.
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Preferred Workers
America issues multiple Green Cards annually to individuals with skills needed in the nation’s market. To apply for these Green Cards, you need a job offer. On the other hand, the American employer must demonstrate that the skills they bring are not available in the country’s labor market. Therefore, when you possess the right background for a job and an employer is willing to sponsor you, you are qualified to apply for permanent residency.
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You are Seeking Asylum or Refuge
You can apply to become a U.S. refugee while still in your mother country if you can prove that you risk persecution in your country. And if you are already at the border, you can seek asylum. Nonetheless, only a special group of individuals are allowed to seek asylum or refuge. You must be experiencing persecution because of political opinion, ethnicity, religion, race, or nationality. Your request for asylum or refuge will be turned down if you escape home because of poverty or indiscriminate violence.
When your qualification for conditional residency is based on your refugee or asylum status, you should have waited for at least twelve months after being granted asylum or entered the country as a lawful refugee to adjust your status.
You Immigration Petition Must Have Been Approved
When your immigration petition hinges on employment or family, the USCIS must have approved it with Form I-130 on file and the most current priority date. Priority dates are issued because many applicants fall under the preference group. Considering there is a limit on the visas to be issued under each category, you must wait until a visa number is available before applying for legal permanent residency. Nonetheless, you do not have to wait for a visa number to adjust your status as an immediate family. You can file your petition along with immigration status adjustment.
The Circumstances Must Not Change
Your eligibility for a status adjustment can take a hit if circumstances change. A change in the family situation can hinder your adjustment significantly. Assume you are a 19-year-old child whose mother is a United States citizen. When your mother files for an application, it will be easily approved because you are an immediate family. However, if your mother dies after the approval, you will no longer be qualified for adjustment because you cease to be the immediate family of an American citizen.
Another reason you could be ineligible for status adjustment is a change in your marriage situation. If you are a spouse to a U.S. citizen, the law considers you immediate family, and you can apply for permanent residence. However, if you divorce your U.S. citizen spouse after a petition for an adjustment has been approved, you become ineligible for conditional residency. Assume after two-year of marriage, your spouse dies after the approval of your petition for lawful permanent residence. Even if there is a change in the marriage situation, you still qualify as an immediate family if you were not legally divorced.
Similarly, when you had petitioned for status adjustment based on your employment, but by the time the petition is approved, the employer withdraws the job offer, then the USCIS will deny you an adjustment based on this change in the situation.
Therefore, if you want to be qualified for an adjustment automatically, the circumstances in your employment, marriage, or family must remain constant. When these circumstances change, you will not automatically qualify for an adjustment.
Exceptions to the Above Requirements
If you do not meet the above criteria, there are still exceptions to qualify for an adjustment. One exception is that you are allowed to overstay your visa if you are an immediate relative of a United States citizen. You must gain entry to the country lawfully and never use fraudulent means to seek permanent residency. You can apply for conditional legal residency through status adjustment despite overstaying when you meet these requirements.
Furthermore, when you are a crime or human trafficking victim, you do not need to have been admitted to the country lawfully because when you are a T or U visa holder, you are deemed to be in America lawfully.
Statutory Bar to Status Adjustment
Sometimes, even if you meet the criteria highlighted in this blog, you could still be barred from an adjustment. The statutory bars to adjustment are:
Failure to Maintain Status, Unlawful Employment, and Status
If you have engaged in unauthorized employment or have an illegal immigration status at the time of seeking permanent residency through status adjustment, your petition will be denied. However, there is an exception to this statutory bar. If you are an employment-based alien, you are not barred from adjusting your status even if you have overstayed your visa by at least 180 days. Additionally, section 245(i) makes you eligible if you have lived in America for several years.
Fiancés with K Visas
If you entered the country through a K-1 visa, you could only adjust your status to lawful permanent residence on a conditional basis. Your adjustment will be approved if you married the person who petitioned for your visa within ninety days of your admission into the country. When you marry someone other than your sponsor, you have a statutory bar from adjusting your status.
Public Charge
When seeking to adjust your status, you must illustrate that you or your sponsor has the financial capacity to finance your stay. So, unless you can demonstrate you are not a public charge, you will not be allowed to adjust your status.
Immigrants who entered under Visa Waivers
If you were admitted to America via the visa waiver pilot program as a visitor or tourist, you are barred from adjusting your status. However, there is an exception to this rule under Sec 245(i) or if you are an immediate relative to a United States citizen.
Transit Without Visa (TWOV)
If you entered the country as a foreign national on your way to another country without a visa, you are barred from applying for a status adjustment. Nonetheless, Sec 245(i) offers an exception to this rule.
Adjusting your status to a permanent residence is a discretionary decision for the USCIS officials handling your case. Even if no statutory bars are hanging over your head or you are eligible for the adjustment, the officials handling your petition could deny it. In other words, your application will be approved when you meet all statutory requirements and do not have any negative factors. Being an immediate family of a U.S. citizen or legal permanent resident is a positive factor that will strengthen your application.
Nonetheless, when negative factors exist in your case, the officer assigned your case must weigh them to determine whether or not to grant your petition. If you are not an immediate family to an American citizen, you are less likely to overcome the negative factors resulting in your petition being denied.
Filing an Application to Adjust Your Status
When you wish to adjust your status and meet the eligibility criteria for the process, you must start by completing Form I-485. If you are an immediate family, you can file both Form I-485 and I-130 concurrently if you meet the requirements for permanent residency. Once you have completed your application to adjust your status, you can submit these forms to the USCIS.
After your submission, you should wait for the next step, where the USCIS will give you an appointment date for biometric screening, typically involving submitting your fingerprints or biometrics info, signature, and photo. The details will be used to run a background check on your criminal record. Additionally, you must submit a medical exam if you are not an asylee, K-1 visa holder, or refugee.
Once you have done this, the next step involves being invited for an adjustment interview. If an immediate relative applied, they must be present for the interview. The invitation contains the date, time, and location of the interview. The purpose of the meeting is to corroborate the info you have provided is true and accurate. Also, it is a chance for them to establish whether a change in circumstances has made you ineligible for the process. The interview will take at most half an hour. Sometimes, the USCIS will require additional info or schedule a second interview.
After submitting all the necessary paperwork, attending the interview, and evaluating your eligibility, your application will be ready for a decision. The decision to grant or deny a Green Card is left to the USCIS officer assigned to your case. If they grant your request, you will be informed of the decision in writing, and the Green Card will be mailed to your address. However, if you have been living in the country illegally or lack good character or morals, these negative factors could result in the denial of your application.
Find an Experienced Los Angeles Immigration Attorney Near Me
Due to the complexity of California immigration laws, you will be left in a precarious position when applying to adjust your status to a legal permanent resident. The status adjustment process is not an easy one. You need a professional to guide you through the process. At the California Immigration Attorney, we are willing to help you adjust your status, become a permanent resident, and overcome all obstacles. Call us today at 424-789-8809 to arrange a meeting.