Adjustment of Status
What is Adjustment of Status?
The process for applying for legal permanent residency (also known as green card) from within the United States is called Adjustment of Status. The person applying for the Adjustment of Status is called “the applicant”. The Adjustment of Status application is filed with the United States Citizenship and Immigration Services (USCIS). When the applicant applies for Adjustment of Status, they are usually able to stay in the United States while their application is being adjudicated, even if their visa expires before their green card is approved. Another way of obtaining a green card is through the Consular Process. Consular Processing is when the applicant attends the immigration interview outside of the United States. Adjustment of Status and Consular Processing have unique requirements, forms, timelines, and costs, but the eligibility requirements are similar. The law offices of Janell Freeman Somera can help you figure out which process best suits your individual circumstances.
In the case of a marriage based Adjustment of Status (spousal adjustment), the purpose of the application is also to show that the applicant (the foreign spouse) has a good faith marriage with their U.S. citizen or permanent resident spouse. When the applicant is filing an Adjustment of Status based on marriage, it is often possible to file Form I-130 and Form I-485 at the same time (a process called “concurrent filing”).
Adjustments of Status can also be filed under other categories if the visa is current and the person otherwise qualifies. For example, an individual with an approved 1-360 or U visa might also qualify for Adjustment of Status.
who should file an Adjustment?
The first step in the Adjustment of Status process is to determine if you fit into a specific immigrant category.
An applicant can file an Adjustment of Status based on several different categories:
- A family relationship (for example marriage),
- An employment relationship,
- Special immigrant, refugee or asylum,
- Victims of human trafficking or other crimes (U visa, VAWA, and/or T visa),
- Special programs and additional options may exist for a select few.
Only an applicant who is physically present in the United States can file an Adjustment of Status to apply for a green card. Furthermore, after the application is filed, the applicant can only leave the U.S. with authorization from the U.S. Department of Homeland Security, otherwise their Adjustment of Status will deemed to be abandoned.
In general, to file an Adjustment of Status, the applicant must have entered the United States with a valid visa or qualify for an exception (for example, Parole in Place or 245i, also known as the “Life Act”). Also, before an Adjustment of Status can be filed, an immigrant visa must be “immediately available” to the applicant. Depending on the category of the visa being used to submit the Adjustment of Status, there is usually a requirement that the Applicant be in valid status at the time of submitting the Adjustment of Status.
Applicants who are not physically present in the United States cannot file for Adjustment of Status. Even when the Applicant is physically present in the United States, there are certain eligibility exclusions that could prevent the filing of an Adjustment of Status.
FILING THE Adjustment of Status
With so many forms, fees, processes, and regulations to consider, it can be easy to overlook or misunderstand something important.
Generally, you cannot file an Adjustment of Status if you:
- Entered the United States unlawfully (unless a narrow exception applies),
- Entered the United States as a crew member,
- Entered the United States in transit (that is, en route to another country),
- If you a have a been convicted of certain crimes or engaged in terrorist activity.
In addition to the exclusions listed above, there are “inadmissibility” reasons that may prevent someone from filing for Adjustment of Status. This means that you will be disqualified from receiving a green card based on certain factors specific to your case. These factors of inadmissibility include:
- Violations of immigration laws or processes (you have broken United States immigration laws),
- Reasons related to your criminal record (you were charged with specific crimes),
- Health-related reasons (you have a disqualifying contagious disease or a mental health illness),
- Security reasons (you are a threat to the national security of the United States),
- Public charge reasons (you are likely to become dependent on public or social help),
- Other reasons (miscellaneous reasons, such as voting illegally or entering the United States to practice polygamy).
Depending on the family relationship or green card category, there are waivers of inadmissibility that can help remedy some of the reasons for disqualification ( also known as “grounds of inadmissibility”).
What Evidence is needed for Adjustment of Status?
The application for Adjustment of Status needs to be submitted along with supporting documents to prove that the applicant is eligible for a green card. The following supporting documents are included with an Adjustment of Status :
- Proof that the applicant (foreign spouse) entered the United States on a valid visa, demonstrated by a copy of the visa and the I-94 entry and exit record (or provide proof of an exception to this requirement),
- Proof of nationality of the applicant (a copy of the birth certificate and passport of the country of origin),
- Proof that the sponsoring petitioner has the financial means to support the applicant (for example, a copy of the sponsor’s spouse’s tax records and pay stubs). Certain Adjustment of Status categories are exempt from this requirement,
- If the applicant was ever arrested, they must present proof of how the arrest was adjudicated (a certified copy of the court disposition or a letter of no charge from the District Attorney’s office of where the crime was charged).
Adjustment of Status Fees
The fees for applying for Adjustment of Status are as follows:
- Children under 14 years of age who apply with at least one of their parents: $750
- Children under 14 years of age who apply alone: $1,140
- Applicants between 14 and 78 years of age: $1,225 (includes biometric service)
- Applicants age 79 and over: $1,140
- Refugees: do not pay a filing fee
To pay the Form I-485, use a personal check or money order. If you make the payment with a credit card, you must complete Form G-1450. The cost of the Adjustment of Status application fee is non-refundable.
The Adjustment of Status Fingerprint Appointment
After filing the Adjustment of Status, the applicant is notified to go to an Application Support Center (ASC). There, the applicant registers their fingerprints, along with their signature, and photographs are taken. This process is also called the biometrics appointment.
Biometrics (fingerprints) are required for security reasons and criminal background checks. During the appointment at the ASC, the applicant certifies the authenticity of all the information provided.
THE ADJUSTMENT OF STATUS INTERVIEW
You are allowed to have your immigration attorney with you at your adjustment of status interview. An interview is not always required, but often times, the USCIS requires the interview before the Adjustment of Status is approved. If you applied for Adjustment of Status based on your marriage to a to a U.S. citizen or lawful permanent resident, you can count on you and your U.S. spouse both being called in for the USCIS interview. At the interview, the applicant must respond under oath to the questions asked and/or sign a statement.
The documentation that supports the Adjustment of Status must be presented in its original form. This is the identity documents, proof of eligibility, and any other evidence that was filed with the Adjustment of Status application.
During the interview, the Adjustment of Status application and the applicant are scrutinized. At the interview, an applicant with a criminal record will be throughly questioned about the circumstances of each and every arrest. Family-based green card applicants will typically be questioned about their sponsor and relationship with the sponsor. The officer will want to confirm that the immigrant and sponsor have a genuine relationship and if the Adjustment of Status is based on marriage, that the spouse has not sponsored the applicant merely to enable them to get a green card. A person who enters into a marriage for the purpose of evading immigration laws can be prosecuted and if convicted, faces imprisonment for up to five years, a fine of up to $250,000.00, or both imprisonment and a fine.
If the information provided at the interview is incomplete or invalid, USCIS may require additional evidence to be presented or can deny the application. With proper preparation, the interview is not a process to be feared.
How long does the adjustment of status PROCESS take?
The processing time for Adjustment of Status will depend on your adjustment category and the USCIS office with jurisdiction over your application. For example, the processing time for Adjustment of Status applications filed by spouses of United States citizens in Sacramento or San Francisco, California is 9 to 15 months.
Due to the pandemic, the Adjustment of Status process is taking much longer than usual. However, USCIS is conducting interviews and ASC appointments.
When USCIS makes the decision on your Adjustment of Status application, they will send you a written decision notice.
If they approve your application for Adjustment of Status, the applicant will usually receive an approval notification first and a week or so later they receive their Permanent Resident Card (Green Card).
If they deny the Adjustment of Status request, the decision notice will list the reason(s) why the Adjustment of Status has been denied and whether the applicant can appeal the decision. Generally, the applicant cannot appeal a decision. However, even if they cannot appeal the denial, the applicant may still be eligible to file a motion to reopen or consider the case. This is usually accomplished by filing Form I-290B with supporting evidence and legal arguments.
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