ADJUSTMENT OF

STATUS

An “Adjustment of Status” (AOS) refers to the process by which an alien physically in the United States files a petition with U.S. Citizenship and Immigration Services (USCIS) to adjust his or her status from nonimmigrant to immigrant, i.e. Lawful Permanent Resident status.

 

Overview

 

According to the Immigration and Nationality Act (INA), qualified aliens who were inspected, admitted, or paroled into the United States, meet all the requirements for a green card, and are otherwise admissible to the United States are permitted to apply for an AOS.

 

Prior to July 31, 2002, for employment-based adjustment of status applications, USCIS allowed an alien to file a Form I-485 only after his or her underlying immigration petition was approved. However, after, July 31, 2002, however, USCIS’s predecessor agency, Immigration and Naturalization Service (INS), implemented a new rule allowing the concurrent filing of an I-485 and a Form I-140 petition, provided that a visa number is available to the beneficiary at the time of filing. Concurrent filing is typically associated with EB-1 and EB-2 beneficiaries.

 

AOS is a very important relief that some aliens can utilize, namely who have overstayed their authorized stay by at least 180 days, as the unlawful presence could trigger a time bar on aliens attempting to re-enter the United States. If an individual who has at least 180 days of unlawful presence qualifies for an adjustment application, then she will not have to depart the United States and, as a result, will not have to endure a time bar on being able to return to the country.

 

Benefits 

 

As referenced above, applying for an AOS signifies that an alien has reached the final step in getting a green card. Once an AOS application is approved, the petitioning individual gains permanent resident status in the United States, meaning that he or she can live and work in the country indefinitely, and perhaps in the future become a naturalized U.S. citizen. 

 

In addition, three significant benefits redound to AOS applicants. While an I-485 petition is pending, an applicant may simultaneously:

  • Apply for advance parole, which allows an alien to travel abroad and re-enter the country without having to first obtain a visa.

  • Apply for an employment authorization document (EAD), more commonly referred to as a “work permit,” which allows an alien to work for wages in the U.S. 

  • Remain legally in the United States without having to maintain whichever nonimmigrant status the alien had beforehand.

 

Immigration laws are rather complicated and provides no room for mistake. Thus, it is extremely important that aliens seeking any benefit consult with an experiences immigration attorney.

Eligibility
 

Besides the fact that an applicant is admissible to the United States, an applicant must meet the requirements described below, which are enumerated in Section 245 of the Immigration and Nationality Act (INA):

 

  • Physical presence in the United States 

  • Approved underlying Immigrant Petition 

  • Visa Number Availability

  • Lawful admission to the United States: Alien must have been both inspected and lawfully admitted or paroled to the United States. The term “inspected” refers to an alien presenting himself to an immigration officer at a U.S. port of entry, while the term “lawfully admitted” refers to an immigration officer informing an inspected alien that she has been allowed to enter the country. In general, an alien’s I-94 will indicate lawful admission to the U.S. Aliens who did not enter the United States lawfully generally cannot apply for an adjustment of status.

  • Not becoming a public charge 

 

It’s important to note that aliens who meet all the above criteria are not automatically eligible to adjust status. For various reasons, aliens may be statutorily barred from adjustment. Statutory bars to adjustment include:

 

  • Unauthorized Employment

  • Unlawful Status (Overstay)

  • Failure to Maintain Status (Untimely Filings)

  • Aliens who have engaged in unauthorized employment, or who were not in lawful status at the time they filed their AOS applications, or who have failed to continuously maintain their status for even a single day since their entry in the United States are barred from adjusting status.

 

Nonetheless, there are exceptions to the above. These include:

 

  • Immediate relatives (i.e. spouses, parents, and unmarried children under 21 years of age) of U.S. citizens are still eligible to adjust their status.

  • If a violation of status is a "technical violation" that occurred through no fault of an alien, said alien may still be able to adjust status.

  • Employment-based immigrants who have been out of status no more than 180 days in the U.S. remain eligible to adjust.

 

To schedule you consultation, please call us at (516) 406-4000 or submit an inquiry on our website.

Gogia & Raj Law, PLLC
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