Frequently Asked Questions about Adjustment of Status
GENERAL QUESTIONS
Q: What is an adjustment of status?
A: An adjustment of status (AOS) refers to the process by which an alien present in the United States files a petition with U.S. Citizenship and Immigration Services (USCIS) to adjust his or her status from nonimmigrant to immigrant, i.e. permanent resident status, and thereby obtain a green card. An AOS is filed with Form I-485.
Q: What is the difference between an immigration petition and an adjustment of status?
A: An immigration petition asks for a determination as to whether an alien applicant qualifies as an immigrant under a particular category and immigrant preference. For most classes of immigrants, the immigrant preference is important, since a limited number of aliens are allowed to become permanent residents under each category every year.
An adjustment of status application, on the other hand, requests a change in an alien applicant’s status to that of an immigrant (i.e. permanent resident), and cannot be filed unless an immigrant visa is available. The two petitions are related in that an adjustment of status application is based on an approved immigration petition.
Q: What is the difference between consular processing and adjustment of status?
A: Consular processing is the procedure that aliens outside the U.S. must go through to become permanent residents. Becoming a green card holder through an adjustment of status petition is an option only for aliens residing in the U.S. (For more information on consular processing, click here.)
Q: An immigration petition has just been approved for me, and I am currently residing in the U.S. Do I need to file an adjustment of status application?
A: If you would like to become a permanent resident of the United States, then you will need to request an adjustment of status. While your approved immigration petition served to make the determination that you qualify as an immigrant under a particular category and preference, it is an approved adjustment of status petition that ultimately designates you as a permanent resident.
Q: What is concurrent filing?
A: In the summer of 2002, USCIS’s predecessor agency, Immigration and Naturalization Service (INS), implemented a new rule allowing the filing of an I-485 and a Form I-140 petition at the same time, provided that a visa number is available to the beneficiary at the time of filing. Concurrent filing is typically associated with EB-1 and EB-2 beneficiaries. (For more information on concurrent filing of Forms I-485 and I-140, click here. For more information on visa number availability, click here.)
Q: Where should I file my adjustment of status application?
A: Where you file your AOS application depends on whether the underlying petition is employment-based or family-based, as well as your state of residence and whether or not you are requesting premium processing. To find out where your filing location is, click here.
Q: I move around frequently, and so I am afraid USCIS will send something important to an address where I no longer live. Given my situation, what should I do?
A: You should inform USCIS of your new address upon each move to ensure you receive all USCIS materials. (Informing USCIS of any and all address changes is actually required by law.) If you have retained an experienced immigration attorney to handle your case, your attorney will receive USCIS materials for you, or otherwise be notified when USCIS mails you something. Having an attorney take care of important mail is one of the many reasons AOS applicants hire a lawyer for their adjustment cases.
Q: I currently live in Texas, and so my application for adjustment will be processed at the Texas Service Center. But next week, I am moving to California, which is in the jurisdiction of the Nebraska Service Center. What will happen to my application?
A: Nothing. Your application will stay at the Texas Service Center.
Q: I am filing an employment-based adjustment of status application. Can I pay the filing fees with a personal check?
A: Yes, because your case will be processed at one of the USCIS service centers, which accept personal checks.
Q: I am filing a family-based adjustment of status application. Can I pay the filing fees with a personal check?
A: No. The fee must be paid with a money order or cashier's check because your case will be processed at a local USCIS office. Local offices accept only money orders or cashier’s checks as payment.
Q: How long will I have to wait for USCIS to adjudicate my adjustment of status?
A: It depends on whether your adjustment application is employment-based or family-based, as well as your immigration category.
For an employment-based case, your adjustment petition will be adjudicated by a USCIS officer at a service center that handles applications from the state in which you currently live. Employment-based adjustments can take anywhere from six months to two years (or more) to be approved.
For a family-based case, your adjustment petition will be adjudicated by a USCIS officer at a local office with jurisdiction over your place of residence. Family-based adjustments can take as long as three or four years to be approved by some USCIS offices.
Q: It has been two years since I filed my family-based AOS petition, and I still have not heard anything back about my application from USCIS. What can I do to check on the status of my pending petition?
A: Unfortunately, it is not unusual for a family-based AOS application to take this long to be adjudicated. However, you can still make a status inquiry by visiting your local USCIS office, or by contacting USCIS by phone or mail. USCIS’s contact information is listed on the bottom left-hand corner of your receipt notice.
Q: It has been two years since I filed my employment-based AOS petition, and I still have not heard anything about my application. What can I do to check on the status of my pending petition?
A: You can call or write to USCIS for a status inquiry. USCIS’s contact information is listed on the bottom left-hand corner of your receipt notice.
Q: Assuming that I meet all the requirements for an adjustment of status, is it guaranteed that my adjustment will be approved?
A: No.
Q: What can I do if my adjustment application is denied?
A: You are able to file an appeal or ask the adjudicating officer to reconsider the decision, provided that you believe the denial was not justified.
Q: Am I permitted to legally work while my adjustment application is pending?
A: Yes, but only if you are in a nonimmigrant status that allows employment or otherwise if you have received an employment authorization document (EAD), which is more often referred to as a work permit. One of the benefits of being eligible to apply for an adjustment of status is that AOS applicants can apply for an EAD at the same time they file their I-485s, or alternatively at any point during an AOS petition’s pendency. Once their EADs are approved, individuals with pending adjustment applications are able to work for as long as their adjustments remain pending.
Q: Can I leave the country while my adjustment is pending?
A: Yes, but generally only if you have received advance parole, which is commonly referred to as a travel document. One of the benefits of being eligible to apply for an adjustment of status is that AOS applicants can apply for advance parole at the same time they file their I-485s, or alternatively at any point during an AOS petition’s pendency. Once their travel documents are approved, individuals with pending adjustment applications are able to travel to and from the U.S. for as long as their adjustments remain pending.
Note that leaving the country while your I-485 petition is pending can result in USCIS determining that you have abandoned your AOS application (unless you currently have a status like H status or L status). For more information on abandonment, click here.
Q: If I apply for a work permit or advance parole with my adjustment, when should I expect a decision?
A: For an EAD, it can take around three months to receive a decision. USCIS typically processes advance parole applications in less time, often within a month or so.
Q: What is an affidavit of support? Do I need one?
A: Some AOS applications require an affidavit of support, which is filed with USCIS via Form I-864. In this affidavit, the sponsor of an AOS petition promises to provide financial support to the alien beneficiary if and when said alien is unable to support himself. As such, it serves to demonstrate that the alien will not become a financial burden to the U.S. government once he becomes a permanent resident.
We strongly recommend speaking with an experienced immigration attorney to determine whether or not an affidavit of support is needed for your particular adjustment case.
Q: Does the person who signs an affidavit of support for me have to be a U.S. citizen or permanent resident?
A: It depends on whether your underlying petition is employment-based or family-based. For an employment-based adjustment, the person who signs an I-864, if required, does not have to be a U.S. citizen or permanent resident. However, for a family-based adjustment, the person who signs an I-864 must be a U.S. citizen or permanent resident.
Q: I'm applying for an employment-based adjustment of status, and I have a lot of money in the bank. Do I still need to get someone to sponsor me?
A: No. If the money you have is sufficient to support yourself, no affidavit of support is needed for employment-based AOS petitions.
Q: If my income is not sufficient when I file my I-485 based on an approved I-140, can I have somebody else promise to support me?
A: Yes, and you would have that individual sign an affidavit of support (Form I-864).
Q: I have sufficient income to support myself. If I file an I-485 based on an approved I-130, will I still need the relative who filed the I-130 for me sign an affidavit of support?
A: Yes. The person who filed the immigration petition must sign an affidavit of support. If your relative’s income is insufficient, you can get a co-sponsor to sign the I-864 as well.
Q: If my sponsor's income is not enough for the affidavit of support, what else can I do?
A: As noted in the question above, getting a co-sponsor will be necessary.
Q: But what if I’m a multimillionaire? Do I really need to have the relative who filed the I-130 on my behalf sign an affidavit of support?
A: Yes. The person who filed the Form I-130 on your behalf must sign an affidavit of support to sponsor you, no matter how much money you have.
Q: How much income is required to sponsor a family of four?
A: The figure varies each year, and is based on federal poverty guidelines. For the year 2017, for example, the annual income required to support a family of four was at least $24,600. The U.S. Department of Health and Human Services (DHS) publishes federal poverty guidelines online, which you can access here.
Q: My sponsor filed an affidavit of support on my behalf a year ago. However, my sponsor recently lost his job. My AOS application is still pending. Will this affect my adjustment?
A: In this situation, you ought to add another sponsor with sufficient income to your application. To this end, submit a supplement to USCIS.
Q: I applied for Medicaid while I was a student years ago. Will this prevent me from getting a green card now?
A: This alone will probably not prevent you from getting a green card, but it might be a factor. When adjudicating adjustment of status applications, USCIS considers whether or not an alien is or will be a “public charge.” This term refers to a person who is primarily dependent on the government for subsistence. (For more information on public charges, click here.)
Q: Do I need a "criminal record" certificate from my home country for an adjustment of status?
A: No.
Q: I was arrested for driving while intoxicated (DWI) several years ago. I did not fight the charge, and so it is now a conviction on my record. Will the conviction prevent me from getting a green card now?
A: Whether or not prior arrests will affect your application depends on whether or not you were convicted of the associated crime. Unfortunately, having a conviction for the DWI on your record may bar you from adjustment. We therefore urge you to retain an experienced immigration attorney to help you fight a potential denial.
FAMILY-BASED AOS QUESTIONS
Q: What is a derivative beneficiary?
A: Typically, a derivative beneficiary is an immediate family member—i.e. spouses and unmarried children younger than 21 years old—of the principal beneficiary of an approved immigration petition. A derivative beneficiary may apply for an immigrant visa or adjust status if the principal beneficiary is eligible to apply or adjust. For example, say a woman is eligible to adjust her status based on an approved immigration petition filed by her U.S. citizen sister. As derivative beneficiaries, the woman’s husband and minor children can also apply for an adjustment of status.
Q: My husband is a permanent resident. He filed an I-130 for me, which was recently approved. I currently reside in the U.S. Am I able to apply for an adjustment of status now?
A: Yes, if an immigrant visa is available, you are eligible to petition for an AOS on the basis of your approved Form I-130 petition. If a visa number is not available, then you must wait until your priority date is earlier than the cut-off date for your category. (For more information on priority and cut-off dates, click here. For more information on visa number availability, click here.)
Q: My wife is a U.S. citizen, and I am currently in the U.S. under a valid nonimmigrant status. She is planning to apply for a green card for me. Do we have to file an I-130 first and wait for its approval before we can file an I-485?
A: No. You can file theI-130 and I-485 petitions simultaneously. An alien who is the immediate relative of a U.S. citizen is permitted to file an AOS concurrently with the petition filed by the U.S. citizen on the alien relative’s behalf.
Q: I am a U.S. citizen, and my wife currently lives in China. Can I apply for an adjustment of status for her?
A: No. Only aliens who are physically in the U.S. can adjust their status. Because she resides outside of the U.S., your Chinese wife must go through consular processing.
Q: I just received my green card. Can my wife, who is currently in China, now adjust her status to permanent resident?
A: No. Adjusting status is an option for aliens who are physically in the U.S. Aliens residing abroad, including your wife, must go through consular processing for their immigrant visas at a U.S. embassy or consulate in their home countries or countries of foreign residence. (For more information on consular processing, click here.) If your wife were to enter the U.S. with some valid nonimmigrant visa, however, then she could potentially apply for an adjustment in the U.S. after a visa number becomes available.
Q: Many years ago, I entered the U.S. illegally. I am currently married to a U.S. citizen. Can I adjust my status to permanent resident?
A: If you are eligible for the benefits of Section 245(i) of the Immigration and Nationality Act(INA), you may be able to adjust your status. Without qualifying under 245(i), however, you would not be eligible for an AOS. (For more information on Section 245(i) of the INA, click here.)
Q: My husband is a permanent resident. A couple of years ago, he filed an immigration petition on my behalf that was recently approved. I’m currently in the U.S. on a B visa. Am I eligible to adjust my status now?
A: It may be possible. Note that if you did not disclose the immigrant petition when you applied for a B visa, USCIS might deny your adjustment. B visas are intended for temporary stays in the U.S. USCIS may therefore conclude that you fraudulently obtained your B visa because you had preconceived intent to remain in the U.S. that you did not disclose. (For more information on immigrant intent, click here.)
Q: My husband is a U.S. citizen. We got married a year ago, and he helped me file an adjustment of status petition immediately after our wedding. Now he wants a divorce. What will a divorce mean for my situation?
A: If you have not obtained a permanent green card or a conditional green card before the divorce is finalized, your AOS application will be denied.
Q: My U.S. citizen husband and I are legally separated. Can I still adjust my status?
A: Yes, provided that your marriage was not a “sham” marriage.
Q: I am a legal permanent resident. I would like to file an I-130 petition on behalf of my husband, but I just found out that he will have to wait more than four years before he can file for an adjustment of status. Since I am planning on becoming a naturalized citizen of the United States next year, should I just wait until then to help my husband file for an AOS?
A: You can do so, but there is actually no need to wait. Instead, you can file the I-130 now as a permanent resident. Once you become a U.S. citizen, you can request your I-130 be upgraded.
EMPLOYMENT-BASED AOS QUESTIONS
Q: My I-140 was just approved. Am I now eligible to file for an adjustment of status?
A: If an immigrant visa is available to you (depending on what category you are in and your priority date) and you currently reside in the U.S., you may apply immediately. Otherwise, you will have to wait until a visa number becomes available. (For more information on priority and cut-off dates, click here. For more information on visa number availability, click here.)
Q: Follow-up to the above question: I do not know if I will petition for an AOS now. Does my approved I-140 have an expiration date?
A: There is no expiration date for an approved Form I-140. You can wait for as long as you want before filing an AOS application, assuming you satisfy all other eligibility requirements.
Q: My I-140 has been approved, and I filed an I-485 petition when a visa number became available. I recently got married. Is my spouse eligible to file an adjustment of status application and obtain a green card, too?
A: Yes.
Q: Follow-up to the above question: Can my children apply for an AOS, too?
A: Yes. If your spouse and children are in the U.S. with you, they can apply for an adjustment of status as your derivative beneficiaries.
Q: Follow-up to the above question: Can my parents and siblings also apply for an AOS?
A: No.
Q: I am currently in H-1B status, but my status will expire soon. I filed an I-485 petition based on an approved I-140. I have also applied for an employment authorization document (EAD). I know I am permitted to work for any employer when I receive the EAD. Should I still extend my H-1B status after I receive an EAD?
A: You might want to consider extending your H-1B in light of one possible outcome: your adjustment application is denied. Even though your I-140 and EAD were approved, you will no longer have legal status in the United States without either a pending I-485 or an extended H-1B. As a result, you would not be able to stay and work in the country.
Q: My husband's National Interest Waiver (NIW) petition was recently approved, and a visa number is available. However, he just lost his job. Given that we do not have income now, are we able to adjust our status?
A: Yes, but you will need a sponsor who is willing to sign an affidavit of support for you and your husband. If you yourself become employed, you can obtain an employment letter and sign an affidavit of support on your husband’s behalf.
Q: My employer filed an employment-based immigrant petition based on my qualifications as an outstanding researcher. The EB-1B petition was approved, and I would now like to file for an adjustment of status. Am I required to continue working for my employer?
A: Generally, an employment-based immigrant is not required to work for the petitioning employer until the employee obtains his permanent resident status. Once an employee beneficiary obtains a green card, she is required to work for a “reasonable” period of time for her petitioning employer.
There is an exception of sorts to the above for aliens in H-1B status: if their current employer is different from the one sponsoring their green card, then H-1B holders should begin working for the green card-sponsoring employer no earlier than 180 days after they file their AOS applications. As such, H-1B holders can work for different employers before obtaining permanent resident status without jeopardizing their green cards.
QUESTIONS ABOUT OTHER AOS SCENARIOS
Q: I was admitted to the U.S. on a K visa a month ago, but my fiancé and I have not yet married. Is there a time limit on when we have to get married?
A: Yes, in order to maintain legal status, you must be married to the U.S. citizen fiancé who petitioned for you no later than 90 days after your arrival.
Q: I came to the U.S. as a fiancé on a K visa. Within 90 days after arriving, I married the person who petitioned for me. Am I eligible to adjust my status to permanent resident?
A: Yes, based on your K-1 visa and marriage, you are eligible to adjust your status.
Q: I came to the U.S. as a fiancé on a K visa. Unfortunately, things did not work out with the person who petitioned for me, but I did find love elsewhere: I married another man who also happens to be a U.S. citizen. Can I now adjust my status to permanent resident?
A: No. To be eligible for an adjustment on a K visa, you are required to marry the person who sponsored your visa no later than 90 days after your entry into the U.S. We’re happy you found love, but you can’t adjust your status based on your current marriage.
Q: Follow-up to the above question: What can I do to become a permanent resident?
A: You will have to leave the United States and undergo consular processing at a U.S. embassy or consulate in your home country.
Q: I was a crewmember working on a ship with a D visa. I left my work and have resided in the U.S. illegally since. Am I eligible for protection under Section 245(i) if I satisfy all other requirements?
A: Yes. (For more information on Section 245(i) of the INA, click here.)
Q: Follow-up to the above question: If I missed the deadline of April 30, 2001, am I still eligible to adjust my status by marrying a U.S. citizen?
A: No.
Q: I brought my daughter illegally to the U.S. when she was an infant. My daughter is now 10 years old. We satisfy all the requirements to benefit from 245(i), and we are now ready to adjust our status. Is my daughter required to pay the standard $1,000 penalty?
A: No. The penalty does not apply to children younger than 17 years old.
Q: Follow-up to the above question: Do I have to pay the $1,000 penalty?
A: Yes.
Q: I was granted asylum status. I filed an AOS petition when I was single. I’m currently married, however. Is my spouse eligible to file an I-485 and obtain a green card, too?
A: No.
Q: I came to the U.S. under the Visa Waiver Pilot Program. I am now married to a permanent resident. Can I adjust my status?
A: Generally speaking, visa waiver entrants are not eligible to apply for an adjustment of status unless their AOS applications are based on an immediate-relative petition filed within the 90-day authorized period.
Q: I entered the U.S. on a B-2 visitor visa. I ended up overstaying my visa by a year. Am I eligible to apply for an adjustment through my employer?
A: No, you may not, unless you are eligible for protection under 245(i). (For more information on Section 245(i) of the INA, click here.)
Q: Follow-up to the above question: I am currently married to a legal permanent resident. Am I eligible for an adjustment of status?
A: No, assuming that you are not eligible for protection under 245(i).
Q: Follow-up to the above question: I am married to a U.S. citizen. Am I able to apply for an adjustment of status?
A: Yes.
Q: I entered the U.S. on an F-1 student visa. I want to apply for an adjustment of status through my brother, who is a U.S. citizen. However, I have been working illegally. Do I have to disclose my unauthorized employment on my immigration applications?
A: Yes, you must answer each question honestly.
Q: I entered the U.S. on a J-1 visa and am now married to a U.S. citizen. Can I adjust my status?
A: Yes, but only if you are not subject to the two-year foreign residence requirement. If you are subject to this requirement, you will be able to adjust your status only after you meet the requirement or the requirement has been waived.
Q: I was in H-1B status when I filed my AOS petition. What is my status now?
A: You will remain in H-1B status for as long as your H-1B is valid. When your H-1B expires and you did not extend it, you will automatically convert to I-485 pending status.
Q: Follow-up to the above question: Do I need to renew my H-1B if my adjustment application is still pending?
A: It is always prudent to maintain a separate legal status while an AOS petition is pending. A separate status serves as a contingency of sorts in the event your adjustment petition is denied. If your AOS were denied and you still had valid H-1B status, you would revert to H-1B status. Without a fallback option, however, you would not have legal status.
Q: Follow-up to the above question: When I filed my AOS petition, I also applied for and received advance parole. If I leave the U.S., will I lose my H-1B status?
A: Not necessarily. The way you would lose your H-1B status is if you returned to the U.S. using your advance parole instead of an H-1B visa. (For more information on advance parole, click here.)
Q: Follow-up to the above question: When I filed my AOS petition, I also applied for and received a work permit. Can I now work for any employer?
A: Yes. Employment authorization documents (EADs), or work permits, allow you to work for any employer. Note that if you use your EAD to work, however, you will lose your H-1B status. (For more information on EADs, click here.)
Q: My wife was in H-4 status when she filed for an adjustment of status. She simultaneously applied for and received a work permit. If she works, will I lose my H-1 status?
A: No.
QUESTIONS ABOUT ZHANG & ASSOCIATES
Q: Why do I need an attorney's assistance for an adjustment of status petition? Couldn’t I just do it myself?
A: You can certainly try to apply for an adjustment yourself. However, an experienced immigration attorney can help you prepare the forms and supporting documents more efficiently and accurately. In addition, a seasoned legal team will be able to inform you of any potential problems that could arise in your particular case, and provide expert solutions on how to deal with those problems.
To begin your potential AOS case, contact Zhang & Associates for an initial free consultation by clicking here. And to start collecting the information and documentation you will need, complete our free guide on adjusting status by downloading the PDF here.
Q: Who will handle my case if I retain your firm?
A: Our experienced attorneys will directly handle your case. At our firm, you will have peace of mind knowing that only seasoned attorneys, and not just clerks or paralegals, are handling your case. Our law clerks’ main objective is to assist our attorneys administratively. On top of that, not only will your case be prepared by an individual attorney, but one of our most experienced associates or partners will review it and any associated application prior to submission.
Q: How much are attorney’s fees for adjustment of status petitions?
A: In short, it depends. Fees range as a function of the complexity of issues or length of process time and work involved. During a free consultation on your potential case with an experienced attorney at Zhang & Associates, you will be provided a quote on the attorney’s fees that would be assessed on your individual case.
For more detailed information on adjustment of status, including related issues, refer to the following links:
Updated 08/10/2017