Permanent Residency

Adjustment of Status

Adjustment of Status (“AOS”) is a process that allows an eligible applicant to become a lawful permanent resident of the United States (“Green Card holder”) without having to go abroad and apply for an immigrant visa. Another alternative to AOS is Consular Processing. The US Green Card, also known as the permanent resident card, gives the holder permanent residence in the United States. Green Card holders can legally live and work in the United States. They can also travel in and out of the country more freely. The US Green Card is the first step toward US citizenship as one must generally secure a Green Card before applying for naturalization.

You have to be eligible for adjustment of status (according to Section 245 of the Immigration and Nationality Act), as follows:

  • eligible for a U.S. green card (lawful permanent or conditional residence), through a U.S. employer, or a family member who is a U.S. citizen or permanent resident , or by having received asylum or refugee status at least one year before;
  • eligible based on employment or family visa petition (Form I-130 or I-140) on with priority date current. Priority dates apply to immigrants in “preference categories” who, because of annual limits on visas in those categories, must wait until a visa is available before proceeding with their green card application. The exception to the rule is having a visa petition in categories such as “immediate relative” where the visa petition can be filed concurrently, or at the same time as the adjustment of status application;
  • eligible based on entry to United States on a K-1 fiancé visa and married to the US citizen petitioner within 90 days of entry;
  • eligible based on asylum or refugee status and waited one year since either asylum was granted or entered the United States as a recognized refugee.
  • eligible when physically in the United States;
  • eligible when NOT have entered the U.S. as a foreign national crewman, in transit without a visa (“TWOV”), or under the Visa Waiver Program (VWP) However, entry on the VWP may be acceptable if immediate relative of a U.S. citizen;
  • eligible (with some exceptions) based on entry the U.S. with permission, after inspection at the border, and be in valid visa status at the time of your application to adjust status. This included a requirement that you have not have stayed past the expiration of your permitted stay or worked without permission from U.S. immigration authorities. One major exception regarding overstays applies to the immediate relative (children, spouse, or parents) of U.S. citizens. As long entered in valid visa status and didn’t use visa fraudulently with the intent to apply for a U.S. green card after arriving. Another exception, created by courts in the Sixth and Ninth federal circuits, and applicable only to people living there, current Temporary Protected Status (TPS) can be considered to have been admitted to the U.S. lawfully and with inspection.

Special Eligibility Cases: Section 245(i)

  • People who have lived in the U.S. for several years are still allowed adjust status based on some old laws called Section 245(i) and the LIFE Act. If you fit most of the above criteria but are not eligible to adjust status due to your illegal U.S. entry or other visa or status violation, these laws let you adjust status, upon payment of a $1,000 penalty fee:
  • eligible as beneficiary of an immigrant visa petition or labor certification application (including I-140, I-130, I-360, or I-526) that was filed on or before April 30, 2001, and
  • eligible if petition was filed between January 14, 1998 and April 30, 2001, you can also prove that you were physically present in the U.S. on December 21, 2000.

 

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