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.
Iimmediate 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.”
Who May Apply to Become a Lawful Permanent Resident While in the United States?
You may be eligible to apply for adjustment to ermanent resident status if you are already in the United States and if one or more of the following categories apply to you.
Family Member:
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.
Employment:
You are an alien who has an approved visa petition filed in your behalf by a United States employer.
Visa Number:
If you are a Family- or Employment-based applicant, you must have an immigrant visa number available from the State Department unless you are in a category that is exempt from numerical limitations. Immediate relatives of United States citizens are exempt from this requirement. Immediate relatives of U.S. citizens are parents, spouses, and unmarried children under 21. (For instance, you can apply to adjust to permanent resident status at the same time that your U.S. citizen daughter files an application for you to become an immigrant.)
Other immigrant categories that are exempt from numerical limitations and do not need a visa number include special immigrant juvenile and special immigrant military petitions. For more information on immigrant visa numbers, see How Do I Get an Immigrant Visa Number? Also see How Do I Bring My Spouse to the United States to Live? How Do I Bring My Child to the United States to Live? and How Do I Bring My Parents to the United States to Live? USCIS Form I-360 provides more information on special immigrant juvenile and special immigrant military petitions.
For the unmarried son or daughter (over 21 years of age) of a US Citizen, brother or sister of a US Citizen, or the spouse or children of lawful permanent residents, visa numbers are limited by law every year. This means that even if the USCIS approves an immigrant visa petition for you, you may not get an immigrant visa number immediately. In some cases, several years could pass between the time the USCIS approves your immigrant visa petition and the State Department gives you an immigrant visa number.
Fiance(e):
You were a fiancé who was admitted to the United States on a K-1 visa and then married the U.S. citizen who applied for the K-1 visa for you. (If you married the U.S. citizen but not within the 90-day time limit, your spouse also must now file USCIS Form I-130, Petition for Alien Relative ). Your unmarried, minor children are also eligible for adjustment of status. See How Do I Bring My Fiancé to the United States? for more information. If you did not marry the U.S. citizen who filed the K-1 petition in your behalf, or if you married another U.S. citizen or lawful permanent resident, you are not eligible to adjust status in the United States.
Asylee:
You are an asylee or refugee who has been in the United States for at least a year after being given asylum or refugee status and still qualify for asylum or refugee status. See Asylee or Refugee Seeking Lawful Permanent Resident (LPR) Status, How Do I Apply for Asylum?, and How Do I Get Resettled in the United States as a Refugee? for more information.
Diversity Visa:
You received notice from the Department of State that you have won a visa in the Diversity Visa Lottery
Cuban Citizen:
You are a Cuban citizen or native who has been in the U.S. for at least a year after being inspected, admitted, or paroled into the United States. Your spouse and children who are residing with you in the United States may also be eligible for adjustment of status.
U.S. Resident Since Before 01/01/72:
You have been a continuous resident of the United States since before January 1, 1972. See 8 CFR 249.2(a), under “Jurisdiction.”
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:
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.
Choosing Between Consular Processing and Adjusting Status
There are two methods of securing permanent residence in the US once a person is approved for immigration. One is called consular processing; the other is adjustment of status. As the name implies, in consular processing the applicant applies for and processes an immigrant visa at a US consulate abroad, most often in their home country. Adjustment of status is the process by which a person already in the US has their immigration status adjusted to that of a permanent resident. The applicant determines the desired method of processing at the time the initial petition for classification as an immigrant is filed.
Consular Processing
In consular processing, the USCIS forwards the approved immigrant petition to the National Visa Center (NVC), which is part of the State Department. When an immigrant visa number becomes available, the NVC generates a collection of documents known as Packet 3. Packet 3 includes the State Department form for applying for an immigrant visa, an affidavit of support, which must be filed in all family cases and in some employment-based cases, and instructions on the process.
The applicant must complete the forms and return them to the appropriate consulate. The applicant must also gather documentation, including a passport, birth certificates, police certificates, court and prison records if relevant, military records if relevant, and marriage and divorce certificates for each person immigrating. Upon receipt of the forms and notification that the applicant has obtained all necessary documentation, the consulate will issue what is known as Packet 4. Packet 4 includes the time for the visa interview appointment, as well as information on obtaining the required medical examination.
If the application is approved, the person will be issued an immigrant visa, which is good for only six months. If the person does not enter the US within that period of time, the visa will expire and the opportunity to immigrate will be lost.
If the application is denied, the principle consular officer at the post reviews it. If the officer desires, he can get a second opinion from the State Department. However, if, after this point, the denial is upheld, there is no recourse for the applicant.
Consular processing was once the only way to obtain an immigrant visa, as there was no adjustment of status process. When adjustment of status was created, it became tremendously popular, due in large part to the reentry bars that were created in 1996. However, as USCIS backlogs have grown longer and longer, more and more people are looking at consular processing to speed the process.
Adjustment of Status
A person applies for adjustment of status with the USCIS from within the US. Along with the adjustment form, results of a medical examination, an affidavit of support, if required, evidence of the approval for immigration and a copy of the applicant’s passport must be submitted. Evidence of any familial relationships must also be submitted, if family members are seeking to adjust their status with the principle applicant.
If the applicant wishes to work or travel abroad while the adjustment of status application is pending, additional forms must be filed. A person is work and travel authorized for only one year at a time, so in many cases, because of USCIS processing delays, the applicant must renew these documents.
Not all adjustment of status applicants are interviewed, although the law provides that any adjustment applicant may be interviewed. Interviews are always conducted in marriage cases, but are less frequent in other family relationships. Interviews are quite rare in employment-based cases.
After approval for adjustment of status, it takes some months before the physical green card is obtained. If the approval follows an interview, the USCIS will stamp the applicant’s passport with an indication that they are a US permanent resident. If there is no interview, the applicant will receive a notice that the application has been approved, which they can take to a local USCIS office and obtain the stamp. A few months later, they will receive the green card.
Deciding whether to pursue consular processing or adjusting status can be a difficult choice. The chief advantage of consular processing is speed. Consular processing is generally much faster than adjusting status. Six to eight months is not unusual compared to one to three years at various USCIS offices around the US.
Adjusting status has several advantages. First, processing can take place with no traveling abroad. Also, the applicant can work while waiting for processing to take place. Finally, processing in the US means that potential bars on reentry can be avoided that might prevent consular processing.
The question often arises over whether it is possible to pursue BOTH consular processing and adjustment of status simultaneously. The question is controversial. There is no statutory bar to processing both ways, but the USCIS takes the position that if it learns that one is pursuing both consular processing and adjustment of status at the same time, it will consider an adjustment application abandoned. This would typically arise when someone is in the process of adjusting status and files a request with the USCIS to cable an approval notice to a consulate to initiate consular processing. However, the issue will typically not arise in the reverse circumstances – when one begins with consular processing and then decides to pursue adjustment of status.
