Adjustment of Status
An “adjustment of status” (AOS) refers to the process by which an alien physically 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. Being eligible to adjust status can be thought of as the difference between an alien successfully becoming a green card holder—or not.
Overview
According to the Immigration and Nationality Act (INA), certain aliens who were inspected, admitted, or paroled into the United States and meet all of the requirements for a green card are permitted to apply for an AOS. The application is submitted via Form I-485.
In the not-so distant past, for employment-based adjustment of status applications, USCIS allowed an alien to file a Form I-485 only after his or her underlying immigration petition was approved. On July 31, 2002, however, USCIS’s predecessor agency, Immigration and Naturalization Service (INS), implemented a new rule allowing the concurrent filing of an I-485 and a Form I-140 petition, 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 immigration petitions, click here.
For more information on concurrent filing of Forms I-485 and I-140, click here.
For more information on visa number availability, click here.
An alien cannot simply choose to adjust his or her status. Instead, an alien must be eligible to do so. There is a host of requirements aliens must meet in order to submit an AOS petition.
For all the relevant details on AOS eligibility, click here.
For some aliens, namely those who have accrued 180 days or more of unlawful presence, the importance of being eligible to file an AOS cannot be overstated. Accruing a minimum of 180 days of unlawful presence triggers a time bar on aliens attempting to re-enter the country from abroad. If an individual who has at least 180 days of unlawful presence qualifies for an adjustment application, then she will not have to depart the United States and, as a result, will not have to endure a time bar on being able to return to the country.
Benefits
As referenced above, applying for an AOS signifies that an alien has reached the final step in getting a green card. Once an AOS application is approved, the petitioning individual gains permanent resident status in the United States, meaning that he or she can live and work in the country indefinitely, and perhaps in the future become a naturalized U.S. citizen.
In addition, three significant benefits redound to AOS applicants. While an I-485 petition is pending, an applicant may simultaneously:
- Apply for advance parole, which allows an alien to travel abroad and re-enter the country without having to first obtain a visa.
- Apply for an employment authorization document (EAD), more commonly referred to as a “work permit,” which allows an alien to work for wages in the U.S.
- Remain legally in the United States without having to maintain whichever nonimmigrant status the alien had beforehand.
For more information on these AOS-related benefits, click here.
Outside the U.S.?
Aliens living abroad are not eligible for an AOS. Instead, they are required to go through consular processing for their immigrant visas at a U.S. embassy or consulate in their home countries or, alternatively, countries of foreign residence.
For more information on consular processing, click here.
Our Firm is Here to Help
Given the often complicated process and the high stakes—a chance at permanent residency in the United States—involved, it’s imperative that aliens seeking adjustment consult with an experienced immigration attorney. To begin your potential AOS case, contact Zhang & Associates for an initial free consultation by clicking here.
For more detailed information on adjustment of status, including related issues, refer to the following links:
Updated 08/10/2017