A Complete Guide of Adjustment of Status

Updated on 08/11/2022

There are many nonimmigrant visas that can grant a foreigner the right to temporarily come to the United States for a specific purpose.  For example, nonimmigrant visas based on employment (H, L, TN, E, I, O, P, Q, CW, and R work visa), nonimmigrant visas based on education (F, J, and M visa),  nonimmigrant visa based on other permitted purposes (B visa). 

While nonimmigrantvisas provide valuable benefits, they all suffer from the same limitation – they have an end date or a set amount of time after which the foreigner must leave the United States.

Foreigners who want to stay in the United States beyond the time covered by their nonimmigrant visasneed to obtain a green card. A green card can grant the tight to permanently live in the United States.

There are two type of methods to obtain a green card, one is known as adjustment of status, another is consular processing. This article describes the concept of adjustment of status.

Adjustment of Status

Meaning of Adjustment of Status

The meaning of adjustment of status is found in the words, “adjustment” and “status”.

With adjustment of status, a person adjusts the person’s immigration status in the United States.  The person is already in the United States for some temporary reason, but adjustment of status adjusts the person’s immigration status to qualify for a green card and be allowed to permanently reside in the United States.

Adjustment of status is one of two principal methods to apply for a green card.  If you are already in the United States, you use adjustment of status.  If you are not already in the United States, you use consular processing.

The key form for adjustment of status is USCIS Form I-485, “Application to Register Principal Residence or Adjust Status” (“Form I-485”).

Eligibility for Adjustment of Status

To be eligible for adjustment of status, you must be eligible to obtain a green card.  There are three common categories of green card eligibility –family, employment, and other.

Family Basis

The following family members of a U.S. citizen are eligible for an “immediate relative” green card and thereby eligible for adjustment of status:

  • Spouse;
  • Unmarried child (under 21 years of age); and
  • Parent (if the U.S. citizen is at least 21 years old).

The following family members of a U.S. citizen or green card holder are eligible for a “family preference” green card and thereby eligible for adjustment of status:

  • F1: Unmarried son or daughter (21 years of age or older) of a U.S. citizen;
  • F3: Married son or daughter of a U.S. citizen;
  • F4: Brother or sister of a U.S. citizen (if the U.S. citizen is at least 21 years old);
  • F2A: Spouse of a green card holder;
  • F2A: Unmarried child (under 21 years of age) of a green card holder; and
  • F2B: Unmarried son or daughter (21 years of age or older) of a green card holder.

Before a person can apply for adjustment of status, the person generally must file an Form I-130, “Petition for Alien Relative” to establish one of family-based eligibility. For an immediate relative of a U.S. citizen, Form I-130 and I-485 is allowed and recommended to file together (known as “concurrently filing”). For a relative under F2A, as the visa number is current now, Form I-130 and I-485 can be filed together as well.  For all other family categories (F1, F2B, F3, F4), Form I-485 cannot be filed until a visa number is current.

In addition, there are another four types of family members can be eligible for a green card and thereby be eligible for adjustment of status, includes:

  • a person admitted to the United States as a fiancé(e) of a U.S. citizen (“K-1 nonimmigrant”);
  • a person admitted to the United States as the child of a fiancé(e) of a U.S. citizen (“K-2 nonimmigrant”);
  • a widow or widower of a U.S. citizen who was married to the U.S. citizen spouse at the time the spouse died (“widow or widower”); and
  • battered or abused spouse, child, or parent of a U.S. citizen or a battered or abused spouse or child of a green card holder (“VAWA”).

Before a person under K-1 and K-2 category can apply for adjustment of status, they should file a Form I-129F, “Petition for Alien Fiancé(e)” first.  A widow or widower of a U.S. citizen or persons under VAWA should file a Form I-360,“Petition for Amerasian, Widow(er), or Special Immigrant” before or at the same time of filing Form I-485.

Employment Basis

A person is eligible for a green card and thereby eligible for adjustment of status if the person is a “first preference immigrant worker”(EB-1), meaning the person:

  • EB-1A: Has extraordinary ability in the sciences, arts, education, business, or athletics;
  • EB-1B: Is an outstanding professor or researcher; or
  • EB-1C: Is a multinational manager or executive who meets certain criteria.

A person also is eligible for a green card and thereby eligible for adjustment of status if the person is a “second preference immigrant worker” (EB-2), meaning the person:

  • Is a member of a profession that requires an advanced degree;
  • Has exceptional ability in the sciences, arts, or business; or
  • Is seeking a national interest waiver.

In addition, a person is eligible for a green card and thereby eligible for adjustment for status if the person is a “third preference immigrant worker” (EB-3), meaning the person:

  • Is a skilled worker (meaning the job requires a minimum of two years training or work experience);
  • Is a professional (meaning the job requires at least a U.S. bachelor’s degree or a foreign equivalent and the person is a member of the profession); or
  • Is an unskilled worker (meaning the person will perform unskilled labor requiring less than two years of training or experience).

A person is eligible for a green card thereby eligible for adjustment of status if the person is a “special immigrant” (EB-4):

  • a member of a religious denomination coming to the United States to work for a nonprofit religious organization (“religious worker”);
  • a juvenile who needs the protection of a juvenile court because the juvenile has been abused, abandoned, or neglected by a parent (“special immigrant juvenile”);
  • certain Afghanistan or Iraq nationals who worked for the United States government (“Afghan or Iraqi national”);
  • Certain broadcasters;
  • Certain retired officers or employees of a G-4 international organization or NATO-6 civilian employees and their family members;
  • Certain employees of the U.S. government who are abroad and their family members;
  • Members of the U.S. armed forces;
  • Panama Canal company or Canal Zone government employees;
  • Certain physicians licensed and practicing medicine in a U.S. state as of Jan. 9, 1978.

Last employment category is EB-5, for investors who have invested or are actively in the process of investing at least $1,050,000 (or $800,000 in a targeted employment area or for an infrastructure project) in a new commercial enterprise in the United States which will create full-time positions for at least 10 qualifying employees (“alien entrepreneur”).

In order to be eligible to file a Form I-485, a person need to establish one of employment-based eligibility first. The underlying immigrant petition form for EB-1, EB-2, EB-3 category is Form I-140, “Immigrant Petition for Alien Worker”. The underlying immigrant petition form for EB-4 category is Form I-360,“Petition for Amerasian, Widow(er), or Special Immigrant”. The underlying immigrant petition form for EB-5 category is Form I-526, “Immigrant Petition by Alien Entrepreneur’”. Most employment-based applicants need to wait for a visa number before they can file a Form I-485. Only persons under certain employment category are eligible to file their Form I-485 together with their immigrant petition form.

Other Basis

Outside of the family and employment categories, other persons eligible for a green card and thereby eligible for adjustment of status include:

  • an asylee granted asylum status at least one year ago ;
  • a refugee admitted as a refugee at least one year ago;
  • certain victims of human trafficking (who currently have a T nonimmigrant visa);
  • certain crime victims (who currently have a U nonimmigrant visa); and
  • a lottery winner of a diversity visa in the United States Department of State’s Diversity Immigrant Visa Program.

Bars to Adjustment

Certain applicants are ineligible to adjustment of status if they have bars to adjustment. Bars to adjustment include the following:

  • illegal entry to the U.S.;
  • last entry as a nonimmigrant crewman (CW work visa);
  • unauthorized employment;
  • nonimmigrant status violation;
  • failure to maintain lawful status;
  • last entry under Visa Waiver Program;
  • involvement in a terrorist activity or group;
  • last entry with a K-1 or K-2 visa, however failure to adjust status through the petitioner of I-129F;
  • J-1 or J-2 visa holders who are subject to the two-year home country residence requirements and failure to meet such residence requirements or without obtaining a J waiver.

Nevertheless, three types of bars include unauthorized employment, nonimmigrant status violation and failure to maintain lawful status, do not apply to the following adjustment applicants:

  • applicants based on VAWA;
  • immediate relatives of a U.S. citizen;
  • religious workers;
  • Afghanistan and Iraq nationals;
  • certain G-4, NATO-6 employees and their family members

Furthermore, for immediately relatives of a U.S. citizen, even they entered under Visa Waiver Program, bars to adjustment rule does not apply to them. Accordingly, immediately relatives of a U.S. citizen can adjust status even if they entered the U.S. under Visa Waiver Program, or have been out of status for many years, or have ever worked illegally in the U.S., as long as they entered the U.S. legally. 

For special immigrant juveniles, the only adjustment bar that applies to them is the bar for being deportable due to involvement in a terrorist activity or group.

For employment-based applicants, generally, they are still eligible to adjustment of status even if they have ever been involved in unauthorized employment, nonimmigrant status violation or failure to maintain lawful status for 180 days or less, which is known as exemption under INA 245(k).

Admissible to the U.S.

To be eligible for adjustment of status, applicants must be admissible to the U.S. Grounds of inadmissibility includes health issues (serious infectious diseases), criminal history, terrorism, national security, public charge, illegal entry and immigration violation, fraud and misrepresentation, false claim to U.S. citizenship, have ever been in removal proceeding. Certain applicants can be still eligible for adjustment of status even they have one or more grounds of inadmissibility. It is advisable to consult a skilled immigration lawyer first to determine whether you are admissible to the U.S.  

For applicants are inadmissible to the U.S., they might be still eligible for adjustment of status if they meet the I-601 or I-601A waiver requirements. However, the requirements of waiver are very strict and better to seek professional opinions.

90-Day Rule

To be eligible for adjustment of status, it is necessary to avoid the 90-day rule.

Certain nonimmigrant visas are issued based on a representation that the foreigner does not intend to live permanently in the United States. If there is adjustment of status within 90 days of arriving in the United States, it could be deemed that the nonimmigrant visa was issued based on a misrepresentation, as the adjustment of status within 90 days suggests that there was always an intent to live permanently in the United States.  The 90-day rule can create a presumption of fraud and result in denial of any adjustment of status and green card applications.

The safe approach is to avoid the 90-day rule and not adjust status until more than 90 days after arriving in the United States.  It still could be argued that there was a prior misrepresentation of intent, but the argument is much less likely to be successful if outside of the 90-day rule.

Adjustment of Status Procedure

Completion of I-485

Form I-485 is 18 pages.  It consists of the following 14 parts:

  • Part 1. “Information About You”.  The applicant provides name, date, city, and country of birth, sex, country of citizenship or nationality, immigration status and recent immigration history (including “United States arrival”), address, and Social Security card information;
  • Part 2. “Application Type or Filing Category”.  The applicant indicates whether the application is “Family-based”, “Employment-based”, or in some other category and provides information about the underlying immigrant petition and the “principal applicant” if the applicant is a “derivative applicant” (the spouse or unmarried child under 21 years of age of a “principal applicant”);
  • Part 3. “Additional Information About You”.  The applicant provides immigration, address history, and employment history information;
  • Part 4. “Information About Your Parents”;
  • Part 5. “Information About Your Marital History”;
  • Part 6. “Information About Your Children”;
  • Part 7. “Biographic Information”.  The applicant providesethnicity, race, height, weight, eye color, and hair color information;
  • Part 8. “General Eligibility and Inadmissibility Grounds”.  The applicant answers approximately 80 questions that could render the applicant inadmissible and thereby ineligible for adjustment of status and a green card, including in such areas as “Criminal Acts and Violations”, “Security and Related”, “Public Assistance”, “Illegal Entries and Other Immigration Violations”, “Removal, Unlawful Presence, or Illegal Reentry After Previous Immigration Violations”, and “Miscellaneous Conduct”;
  • Part 9. “Accommodations for Individuals With Disabilities and/or Impairments”;
  • Part 10. “Applicant’s Statement, Contact Information, Declaration, Certification, and Signature”;
  • Part 11. “Interpreter’s Contact Information, Certification, and Signature”;
  • Part 12. “Contact Information, Declaration, and Signature of the Person Preparing this Application, if Other Than the Applicant”;
  • Part 13. “Signature at Interview”; and
  • Part 14. “Additional Information”.

Documents to Submit with I-485

With the Form I-485 application, the applicant must submit certain documents as evidence.  The specific documents that need to be submitted will vary based on the applicant’s category of green card eligibility.  While the specific document requirements are described in the Instructions to Form I-485, most applicants are generally required to submit at least the following:

  • Two recent identical color U.S. passport-style photographs;
  • A copy of a government-issued identity document with photograph;
  • A copy of a birth certificate (except for asylees and refugees);
  • Documentation evidencing inspection by an immigration officer and either being admitted or paroled into the U.S.;
  • Documentation evidencing the applicable category of green card eligibility, including Form I-797, Approval or Receipt Notice, for the underlying immigrant petition;
  • Evidence of continuously maintaining a lawful status since arrival in the U.S. (except for applicants to whom such bar is not applicable as described in the above section of “Bars to Adjustment”);
  • For all family-based and certain employment-based applicants, evidence of financial support (Form I-864);
  • Report of Medical Examination and Vaccination Record (Form I-693);
  • Certified police and court records for any criminal charges, arrests, or convictions (if applicable); and
  • Waiver of any applicable grounds of inadmissibility (if applicable).

I-485 Fee

The filing fee for Form I-485 generally is $1,140.  If the applicant is 13 years of age or younger and filing with a parent’s Form I-485, the filing fee for Form I-485 is reduced to $750.

There is also a biometrics (described below) services fee of $85 for applicants between 14 and 79 years of age.

Please keep in mind that there also will likely be filing fees in connection with any filing of an underlying immigrant petition.

Filing Address of I-485

Form I-485 is filed with USCIS. The specific filing address location varies between USCIS locations in Chicago, Phoenix, Dallas, Lewisville, Texas, Irving, Texas, Lincoln, Nebraska, and Essex Junction, Vermont, based on the applicable green card eligibility category and where the applicant lives. You can find the direct fling address of Form I-485 here.

The applicant must be physically present in the United States to file Form I-485.

Travel while I-485 Pending

Even if the term of the nonimmigrant visa for being in the United States expires, the applicant should not leave the United States while the Form I-485 is pending.

For certain applicants, they can file Form I-131, Application for Travel Document to obtain a Advance Parole. Form I-131 can be filed with Form I-485 at the same time or at a later time. No filing fee for Form I-131. With a valid Advance Parole, such applicants can travel internationally while keep their I-485 applications active and not abandoned. Click here to learn more about a Advance Parole.

Work while I-485 Pending

To work lawfully in the United States, the applicant must have valid work authorization granted by USCIS. The most common work authorization is work visa and EAD card. If the applicant already has a valid work visa, the applicant can continue to work while the I-485 application is pending with USCIS. The applicant can always file Form I-765, Application for Employment Authorization to obtain a EAD card.  Form I-765 can be concurrently filed with Form I-485 or filed at a later time. No filing fee for Form I-765.

I-485 Biometrics

USCIS may require that the applicant appear for a biometric services appointment before approving Form I-485. At the biometric services appointment, the USCIS will collect fingerprints, a photograph, and/or a signature from the applicant.  USCIS uses this information to verify the applicant’s identity and conduct background and security checks.

If the applicant fails to appear for the biometric services appointment, USCIS may deny the Form I-485 application. Click here to learn more about a biometric services appointment.

I-485 Interview

USCIS also may require that the applicant appear for an interview before approving Form I-485. Almost all marriage-based adjustment applicants will be scheduled an I-485 interview. Applicants who have special situations like criminal history, communist member, terrorism, and so on, will have an I-485 interview as well.

The interview will be held at a local USCIS field office near the physical address of the applicant. As such, if the applicant moved after filing of Form I-485, it is important to keep USCIS updated about the physical address in a timely manner.

At the interview, a USCIS officer will place the applicant under oath and ask questions about the information on Form I-485 and the documents submitted with Form I-485. Thus, it is recommended that the applicant be very familiar with Form I-485 and the documents submitted with it.

The applicant should bring to the interview originals of all documents submitted with Form I-485.

I-485 Processing Time

While every case is unique, processing time for Form I-485 can be estimated to take from 6 to 24 months after filing.

Please keep in mind that there also will likely be significant processing time in connection with any filing of an underlying immigrant petition.

If the Form I-485 application is approved, the applicant should shortly thereafter receive a green card.  If the Form I-485 application is denied, a denial letter with detailed reasons will be issued. Generally, after denial, there is no continuing right of the applicant to be in the United States, the applicant may be forced to immediately leave the United States. Nevertheless, certain applicants might be eligible to re-file their Form I-485 applications and start over the whole process. It is advisable to contact a skilled immigration lawyer immediately after the denial of Form I-485 application.

Conclusion

It is a sad day for many foreigners when the term of their nonimmigrant visas comes to an end. They then must leave the United States or will be here illegally.

However, the adjustment of status process provides an opportunity for foreigners to permanently extend their time in the United States by enabling them to obtain a green card.  If one thinks of a nonimmigrant visa as a lease of the right to be to the United States, adjustment of status can be even better – permanent ownership of the right to be in the United States.

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