Adjustment of status is a process that permits certain people in the United States to apply for lawful
permanent resident ("green card") status without having to go abroad. Not everyone qualifies for this procedure. Those that do must apply with an office of the
USCIS and all further
processing will be done by that agency.
Family;
You may be eligible to apply for adjustment to
permanent resident status if you are already in the United States and You are the
spouse, parent, unmarried child under age 21, the unmarried son or daughter over age 21, the married son or daughter, or the brother or sister of a United States citizen and have a visa petition approved in your behalf.
You are the
spouse or unmarried son or daughter of any age of a lawful
permanent resident and you have a family-based visa petition approved in your behalf.
Otherwise Eligible Immediate Relatives:
If "otherwise eligible" to immigrate to the U.S., immediate relatives may adjust status to
LPR (get a "green card") in the United States even if they may have done any of the following:
* worked without permission,
* remained in the U.S. past the period of lawful admission (e.g., past the expiration date on your
I-94) and filed for
adjustment of status while in an unlawful status because of that,
* failed otherwise to maintain lawful status and with the proper
immigration documentation, or
* have been admitted as a visitor without a visa under sections 212(l) or 217 of the Act (which are the 15-day admission under the Guam
visa waiver program and the 90-day admission under the Visa Waiver Program, respectively). Please note: If a person came into the U.S. illegally, that person is barred from adjusting their status to
LPR (cannot obtain a
green card) even if he or she marries a U.S. citizen or otherwise becomes an
immediate relative. An
immediate relative must meet the eligibility requirement of being “inspected and admitted or paroled into the United States.”
The following classes of people shall not receive
adjustment of status:
* You entered the U.S. while you were in transit to another country without obtaining a visa.
* You entered the U.S. while you were a nonimmigrant crewman.
* You were not admitted or paroled into the United States after being inspected by a U.S. Immigration inspector.
* You are employed in the United States without
USCIS authorization or you are no longer legally in the country (except through no fault of your own or for some technical reason). This rule does not apply to you if:
o You are the
immediate relative of a U.S. citizen (parent,
spouse, or unmarried child under 21 years old).
* Certain foreign medical graduates, international organization employees and family members.
* You are a J-1 or J-2 exchange visitor who must comply with the two-year foreign residence requirement, and you have not met or been granted a waiver for this requirement.
* You have an A (diplomatic status), E (treaty trader or investor), or G (representative to international organization) nonimmigrant status, or have an occupation that would allow you have this status. This rule will not apply to you if you complete
USCIS Form I-508 (I-508F for French nationals) to waive diplomatic rights, privileges and immunities. If you are an A or G nonimmigrant, you must also submit
USCIS Form I-566.
* You were admitted to Guam as a visitor under the Guam Visa Waiver Program. (This does not apply to immediate relatives.)
* You were admitted into the United States as a visitor under the Visa Waiver Program. (This rule does not apply to you if you are the
immediate relative of a U.S. citizen (parent,
spouse, or unmarried child under 21).)
* You are already a conditional
permanent resident.
* You were admitted as a
K-1 fiancé but did not marry the U.S. citizen who filed the petition for you. Or, you were admitted as the K-2 child of a fiancé and your parent did not marry the U.S. citizen who filed the petition for you.
Denials
It is possible for a person who is technically eligible for immigrant status to nonetheless be denied
adjustment of status in the exercise of discretion. The most common instances of such discretionary denials involve cases where the applicant abused the nonimmigrant process.
For example, if a person applies for admission into a school or for a change in nonimmigrant status within 30 days of entry, they are presumed to have acted in bad faith. That is, they had the preconceived intent to make the change and they used an easier to obtain visa in order to evade the normal screening process abroad for the visa they really wanted.
If the application occurs between 30 and 60 days after entry, no presumption is made, but there is a strong suspicion that the person may have acted in bad faith. The case will be scrutinized carefully. If the application occurs more than 60 days after entry, the presumption is that the applicant acted in good faith. Both the
USCIS and the State Department reserve the right to re-examine such cases, however, if there is any additional evidence of wrongdoing. If an
AOS applicant has anything in his or her past visa history that suggests that he or she may have abused the visa process, or otherwise tried to take shortcuts, the
USCIS has made it clear that they can and will deny such adjustment applications in the exercise of discretion. Discretionary
AOS refusals are not subject to administrative review. While federal court review is theoretically possible, few judges are willing to attempt to substitute their judgment for that of
USCIS officers in the absence of gross abuse of discretion.
