Who is eligible for adjustment of status

Her alternative route to a green card is to undergo immigrant visa processing at a U. This process is referred to as consular processing. Approved underlying immigrant petition This criterion applies only to the beneficiaries of a family-based immigration petition i. For employment-based immigrant petitions, an I application can be concurrently filed with the underlying Form I petition, provided that a visa number is available to the prospective beneficiary at the time of filing.

For more information on concurrent filing, click here. Visa number availability As stipulated by statute, immigrant visas are subject to numerical quotas on a yearly basis. The consequence of a limited supply of visas and demand exceeding supply has been a backlog in visa number availability. Aliens can submit an AOS petition only when the cut-off dates published every month in the U. For more information on priority and cut-off dates, click here.

For more information on visa number availability, click here. Lawful admission to the United States As noted above, an alien must physically reside in the U. Prior to residing in the country, however, aliens must have been both inspected and lawfully admitted to the United States. Aliens who did not enter the United States lawfully generally cannot apply for an adjustment of status.

Aliens who wish to adjust their status must therefore establish that they have the financial means of support themselves, or alternatively that their sponsoring relatives in a family-based petition have said ability. For your reference, we highlight hypothetical, though not uncommon, changes in circumstances below. Marriage-based changes in circumstances:. For various reasons, aliens may be statutorily barred from adjustment. Statutory bars to adjustment include:. Aliens who have engaged in unauthorized employment, or who were not in lawful status at the time they filed their AOS applications, or who have failed to continuously maintain their status for even a single day since their entry in the United States are barred from adjusting status.

Other Special Circumstances Aliens who are the beneficiaries of certain nonimmigrant visas must carefully consider their eligibility before adjusting status. We highlight several eligibility-related circumstances below.

Exchange visitors with J visas J-1 or J-2 status holders are subject to a two-year foreign residence requirement , stipulating that they return to their home country or foreign country of residence and remain there for at least two years upon completion of their J status.

If a former J-1 or J-2 holder has not satisfied this requirement, or alternatively has not been granted a waiver of this requirement , then said alien will be barred from adjusting status. If the alien marries a U. Aliens in removal proceedings who marry a U. On the flip side, if the alien can demonstrate, with clear and convincing evidence, that the marriage was legitimate—and not for the mere purpose of obtaining permanent resident status and avoiding deportation—then the alien will be eligible to adjust status.

Note, however, that this bar does not apply to persons admitted under these programs who are seeking adjustments as spouses, unmarried minor children, or parents of U. Additionally, the i exception is available to those who qualify. For more information regarding i of the INA, click here. Crewmembers with D visas Foreign national crewmembers who were serving on a vessel or aircraft at the time of their arrival to the U.

Again, however, the i exception is available to those who qualify. For more information regarding i , click here. Transits without a visa Aliens in transit without a visa, traveling through the U. Once again, though, the i exception is available to those who qualify. Adjustment of status is discretionary Ultimately, adjusting status successfully hinges on the findings of the USCIS officer handling a given case.

Aliens must have been inspected and lawfully admitted into the U. You are considered admitted when an officer informs you of such and you are allowed to enter the U. No change in circumstances. However, before the adjustment application is approved, the mother unfortunately dies, and the son is thereby no longer qualified as an immediate relative of a U. An elderly legal permanent resident father petitions for his alien child, but before the adjustment is approved, the father dies.

The child no longer qualifies for adjustment. A legal permanent resident father files a family immigration petition for his year-old alien daughter. The family visa petition had been approved, but while the adjustment was still pending, she gets married. In this situation, the daughter no longer qualifies for adjustment because she is no longer the unmarried child of a legal permanent resident.

However, before the adjustment is approved, they divorce. The petition will be denied and he will not be able to adjust his status. The U. However, before the adjustment is approved, they legally separate. However, before he can file an immigration petition for his wife, he dies. However, she will have to file an immediate relative visa petition within two years after the date of death and must still be unmarried at the time. Employment-based Examples: An outstanding researcher petition for permanent residence under EB-1 b status, but before the petition was approved, his employer withdrew his research position offer.

An alien is granted a National Interest Waiver and later applies for adjustment of status. However, after being granted the National Interest Waiver, the alien decides she no longer wants to work in her previous research field and decides to take a new job in an unrelated field.

If an adjustment is based on an Eb-1 b , Outstanding Researcher petition, or any employment-based visa petition that requires a Labor Certification, the alien must work for the petitioning employer for days after the I has been filed.

Statutory bars to adjustment include: Unauthorized Employment, Unlawful Status or Failure to Maintain Status: Aliens who have engaged in unauthorized employment, or who were not in lawful status at the time of filing the adjustment application, or who have failed to continuously maintain status for even a single day since their entry into the United States are barred from adjustment of status.

Exceptions — This rule has several exceptions, which include: Immediate relatives spouses, parents and unmarried children under years of age of U. Exchange visitors with J visas: J-1 or J-2 non-immigrant status holders are subject to the two-year foreign residence requirement. They will be barred from adjustment if they have not completed their two-year foreign residence requirement or if they have not been granted a waiver of it. In other words, if the alien marries a U. Public charge: Aliens who wish to adjust their status must be able to prove that they or some sponsoring individual such as a spouse have the financial means of supporting themselves.

Therefore, unless an alien can show that he or she will not be a public charge, they are not eligible to adjust their status.