Navigating the Path to Permanent Residency: FAQs on Adjustment of Status

Posted on Sep 25, 2023 by Chris Prescott

Immigrating to the United States can be a life-changing experience. For many, the goal is to obtain lawful permanent resident status, often referred to as a green card. One of the primary pathways to achieving this status is through the process known as “adjustment of status.” In this article, we will address some frequently asked questions (FAQs) about the adjustment of status process to help you better understand the journey to becoming a permanent resident.

1. What is Adjustment of Status?

Adjustment of status is the process through which certain non-immigrants who are already in the United States can apply to become lawful permanent residents without leaving the country. Essentially, it allows eligible individuals to transition from temporary visa statuses to permanent resident status while remaining within the U.S.  For those not currently in the U.S. Adjustment of status is not an option and obtaining a green card will be done through a process known as Consular processing.

To adjust status in the U.S. you will need to file Form I-485, Application to register Permanent Residence or Adjust Status.

2. Who is Eligible for Adjustment of Status?

Eligibility for adjustment of status is contingent upon several factors, including your  green card category your country of birth, and admissibility considerations, such as a prior criminal history.

Common categories of eligibility include:

Family-sponsored: If you are an immediate relative of a U.S. citizen (spouse, child, or parent), you are generally eligible to apply for adjustment of status.  Other family members may not be able to file for adjustment of status until a green card becomes available, which could involve a long wait time, depending on the category and their country of birth.

Employment-based: Certain employment-based visa holders, such as those with an approved immigrant petition (Form I-140), may be eligible to adjust their status.  

Employment-based applicants typically need to demonstrate that they are maintaining their current non-immigrant status while applying for adjustment of status. However, there is a provision in the law, known as Section 245(k), which allows certain individuals to adjust their status even if they have not maintained continuous status if they meet specific conditions. To be eligible under Section 245(k), the applicant should not have been out of status, worked without authorization, or otherwise violated the terms and conditions of their admission, provided that the total period of such violations does not exceed 180 days.

Asylees and Refugees: Asylees and refugees may also be eligible to adjust their status one year after being granted asylum or refugee status.

3. When can I file for adjustment of status?

The timing of filing for adjustment of status will depend on which category you are filing under and whether there are any available green cards.  This can be determined by consulting the Department of State’s (DOS) monthly visa bulletin. 

The visa bulletin determines green card availability for those filing an employment or family-based application.  For help understanding the visa bulletin please refer to our previous article:

https://patel-law-group.local/breaking-down-the-complexities-of-the-visa-bulletin-what-you-need-to-know/

4. How Long Does the Adjustment of Status Process Take?

The processing times for adjustment of status applications can vary widely based on factors such as the applicant’s category, USCIS’s workload, and the applicant’s place of residence.   For example, a typical employment-based application can take 18 months or more.  It’s important to check USCIS processing times regularly and stay informed about any updates or delays.

5. Will I need to attend an interview for my adjustment of status application?

This depends on the basis upon which you are filing.  For example, a lot of family-based adjustment of status applications may require you to attend an interview.  However, most employment-based adjustments generally don’t require an in-person interview, unless there are additional factors such as a criminal record.

6. Can I Work or Travel While My Adjustment of Status Application is Pending?

When submitting the adjustment of status paperwork using form I-485, you have the option to apply for an employment authorization document (EAD) and advance parole (travel document).  These typically take at least 3-6 months to obtain. 

Once you have the EAD and travel document you can work and travel without negatively impacting your pending adjustment of status application. 

However, those fortunate enough to be on H-1B or L-1 status are permitted to travel, even before they receive advance parole.  Provided they have a valid visa and are returning to work for the same employer, the I-485 will not be considered abandoned.

7. Can I Appeal if My Adjustment of Status Application is Denied?

If your adjustment of status application is denied, you may have options for appeal or file a motion to reopen/reconsider the denial notice you receive from USCIS provides instructions on how to appeal or request a review. It’s crucial to act promptly and seek legal advice if your application is denied.

However, one very important point here is that an appeal/motion does not give you any right to remain in the U.S.  Therefore, if you give up your nonimmigrant status and decide to utilize your EAD/advance parole you will immediately be out of status if your adjustment of status is denied.  It is for this reason that PLG attorneys strongly recommend that you maintain your non-immigrant status until such time as you receive your green card.

8. What are the Benefits of Obtaining Permanent Resident Status?

Obtaining permanent resident status, also known as a green card, comes with numerous benefits, including:

  • The ability to live and work in the United States indefinitely, without the need for you or your employer to file further nonimmigrant petitions.
  • Access to certain government benefits and programs.
  • The opportunity to apply for U.S. citizenship after meeting eligibility requirements.
  • Protection from deportation in most cases.
  • The ability to sponsor family members for green cards.

9. Do I Need an Attorney to Apply for Adjustment of Status?

While it is not required to have an attorney to apply for adjustment of status, many applicants find it helpful to consult with an experienced immigration attorney. An attorney can provide valuable guidance, help you navigate complex immigration laws and regulations, and ensure that your application is prepared accurately and in compliance with all requirements.

Conclusion

Navigating the adjustment of status process can be complex, but with the right information and guidance, you can move closer to achieving your goal of becoming a permanent resident of the United States.   

Filing for adjustment of status is the final step in your immigration journey so it’s crucial to get this right first time.

If you have questions regarding the above or need assistance, please contact PLG Partner, Chris Prescott at cprescott@patellegal.com.