Adjustment of Status (AOS) Under INA 245(a)
Adjustment of Status (AOS) refers to the procedure that allows foreign nationals already in the U.S., who are eligible to receive an immigrant visa and for whom immigrant visa number is immediately available, to apply for immigrant status with the U.S. Citizenship and Immigration Services (USCIS). By this process, a person with non-immigrant status such as B2, H1B, F1, or R1, etc can adjust their status to that of permanent residence.
Benefit while adjustment of status (Form I-485) is pending.
1. Work Permit
Applicants for adjustment to permanent resident status are eligible to apply for a work permit while their cases are pending. You should use USCIS Form I-765 to apply for a work permit. You do not need to apply for a work permit once you adjust to permanent resident status. As a lawful permanent resident, you should receive a permanent resident card that will prove that you have a right to live and work in the United States permanently. Please see How Do I Get a Work Permit? for more information.
2. Travel outside of USA.
If you are applying for adjustment to permanent resident status, you must receive advance permission to return to the United States if you are traveling outside the United States. This advance permission is called Advance Parole. If you do not obtain Advance Parole before you leave the country, you will abandon your application with USCIS and you may not be permitted to return to the United States. For more information, please see How Do I Get a Travel Document?.
Who and When can you apply:
You may apply for Adjustment of Status after your immigrant visa petition is approved by the USCIS, and a visa number is readily available to you either in Family based immigration or Employment based immigration.
1. Adjustment of status based on approval of Family based Petition (Form I-130)
· You have approved I-130 Petition
· You have a current priority date available to file for adjustment of status
Please Note: Visa numbers are limited by law for certain family members of U.S. citizens and lawful permanent residents. This means that even if the USCIS approves your immigrant visa petition, (I-130), you may not get an immigrant visa number immediately. In certain cases, several years could pass between the time USCIS approves your immigrant visa petition and the Department of State gives you an immigrant visa number.
Please note: if you are an immediate relative (spouse, unmarried child under 21, or parents of USC), then your petitioner can file I-130 Petition and you can file I-485 (adjustment of status) at the same time since visa number for Immediate relative is unlimited, thus always available).
2. Adjustment of status based on approval of Employment Based Petition (Form I-140 or I-360).
You can apply for adjustment of status to permanent residence if you satisfy the following conditions
· You have an approved labor certification or are exempt from labor certification requirement
· You have an approved employment based immigration petition
· You have a current priority date available to file for adjustment of status
Spouse or Dependents:
You may be eligible to receive following-to-join benefits if you are a spouse or an unmarried child under age 21 of a U.S. Citizen. In such a case, you may apply to adjust to permanent resident status at the same time that your spouse or parent applies for following-to-join benefits for you.
You may apply for adjustment of status to permanent residence if you were a fiancee who was admitted to the U.S. on a K-1 visa and then married the U.S. citizen who applied for the K-1 visa for you.
Note: If you did not marry the U.S. citizen who filed the
K-1 fiancee petition on your behalf, or if you married another U.S. citizen or lawful permanent resident, you are not eligible to adjust status in the U.S
Important: If you married the U.S. citizen but not within the 90-day time limit, your spouse must now file USCIS Form I-130, Petition for Alien Relative
3. Asylees or Refugees in the U.S.
You may apply for immigration adjustment of status to permanent residence if you are an asylee or a refugee who has been in the U.S. for at least one year after being given asylum or refugee status, and still qualify for asylum or refugee status.
4. Cuban Citizens residing in the U.S. for at least one year
You may apply for adjustment of status to permanent residence if you are a Cuban citizen or native who has been in the U.S. for at least one year after being inspected, admitted, or paroled into the U.S. Your spouse and children who are residing with you in the U.S. may also be eligible for adjustment of status.
Ineligible categories for Adjustment of status.
You may be ineligible for adjustment to permanent resident status if
1. You entered the U.S. while you were in transit to another country without obtaining a visa
2. You entered the U.S. while you were a nonimmigrant crewman
3. You were not admitted or paroled into the U.S. after being inspected by a U.S. Immigration Inspector.
4. You are employed in the U.S. 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 may not apply to you if:
a. You are the immediate relative of a U.S. citizen (parent, spouse, or unmarried child under 21 years old)
b. You are a foreign medical graduate, employee of an international organization, or a family member of an employee of an international organization
5. You are a J-1or 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.
6. You have an A (diplomatic status), E-1 treaty trader,
E-2 treaty investor, or G (representative to international organization) nonimmigrant 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.
7. You were admitted to Guam as a visitor under the Guam visa waiver program. (This does not apply to immediate relatives of U.S. citizens)
8. You were admitted into the U.S. 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)
9. You are already a conditional permanent resident and seeks adjustment on another basis.
10. You were admitted as a K-1 fiancee but did not marry the U.S. citizen who filed the petition for you
11. You were admitted as the K-2 child of a fiancee and your parent did not marry the U.S. citizen who filed the petition for you
Adjustment of Status: Section 245(i)
Even though you are in an eligible category, under a narrow circumstance you can still adjustment under INA section 245(i) when you entered into US without being admitted, when you became out of status, and engaged in unauthorized employment.
The President has signed the "LIFE" Act into law. This new law extends Section 245(i) to those out of status Aliens wishing to apply for Permanent Residency in The United States.
The new Section 245(i) law allows those individuals who are out of status or illegally present in The United States to apply for permanent Residency (Green Card) without the need to return to their home country. The Alien must show that he or she was physically present in the United States the day the Law was signed by the President, December 21, 2000. The Alien must file for Permanent Residency by April 30, 2001.
Important key points include:
The Alien qualifies under Section 245(i) as long as he or she "FILES" an Immigration petition application by April 30, 2001. An approval of the petition by this date is not required.
The Alien will have to pay an additional $1,000.00 penalty to the INS. This penalty will not be due until the adjustment stage of the application. The adjustment stage may be many years, depending on the type of case.
The alien Does qualify under Section 245(i) if a Family or Relative based petition is filed on his or her behalf before the April 30, 2001 deadline. Therefore, even though a sibling United States Citizen petition may take 10 years for some countries for Adjustment, the filing of this petition before the deadline will grandfather the Alien sibling for adjustment when the priority date comes about 10 years later.
The alien may "transfer" his or her petition to another category if that category becomes available. For example, a sibling United States Citizen petitions her Alien brother before April 30, 2001. The brother may legally wait inside the United States for his priority date to become current (this may take 10+ years). However, four years down the road the brother finds an employer who is willing to sponsor him for a green card under Labor Certification. This sponsor may petition the brother via Labor Certification and the brother will be allowed to adjust, as he would be grand-fathered under the 245(i) law.
