Adjustment of Status for Permanent Residence (Immigration) in the U.S. – I-485

An adjustment of status (“AOS”) is a procedure that allows an eligible applicant to become a lawful permanent resident of the United States without having to go abroad and apply for an immigrant visa. Another alternative to AOS is Consular Processing.

Adjustment of Status vs. Consular Processing

Please review both options carefully before proceeding with either of them. An AOS is for applying in the U.S. and consular processing is applying abroad at a U.S. consular office. An AOS cannot be applied for abroad, and consular processing cannot be applied for in the U.S.

While immigrant petitions such as an I-140 are based on your employment with the employer, an I-130 is based on your close relationship with a U.S. citizen or lawful permanent resident. An adjustment of status concerns your personal history, such as health, finances, places of residence, family, and political and criminal background.

Between the time the adjustment of status application is filed and its approval, the applicant is considered to be in legal status as an “applicant to adjust status.”

Employment-Based Applicants Already in the U.S.

Unless the person has filed for an adjustment of status, the person would have to leave the U.S. if his/her six-year H1 (five-year L1) limit is expiring. To count the six-year limit, the total time spent on H1+H4+L1+L2 is counted. It is possible to get your H-1B visa approved for more than 6 years in some cases depending upon your employment-based green card processing status. Refer to the H1 beyond 6 years to find out more about how you can extend your H-1B visa validity after the original 6 years, either 1 year at a time or 3 years at a time.

Eligibility to Adjust Status

If the priority date is current, you may be eligible to apply for an adjustment to permanent resident status if you are already in the U.S. and if one or more of the following categories applies to you:

• Family member
  You either have an approved family-based immigrant visa petition or are filing it concurrently, whenever possible.
  
  
• Employment
  You either have an approved employment-based immigrant visa petition or are filing it concurrently, whenever possible.
  
  
• Fiance(e)
  You were admitted to the United States as a K-1 fiancé(e) of a United States citizen and you married that citizen within 90 days of your entry. If you were admitted as the K-2 child of such a fiancè(e), you may apply to adjust your status based on your parents’ adjustment.
  
  If you married the U.S. citizen but not within the 90-day time limit, your spouse must now also file a Form I-130, Petition for Alien Relative. If you did not marry the U.S. citizen who filed the K-1 petition on your behalf, or if you married another U.S. citizen or lawful permanent resident, you are not eligible to adjust your status in the United States.
  
  
• Asylee/Refugee
  You are an asylee or refugee who has been in the United States for at least a year after being given asylum or refugee status and still qualify as an asylee or refugee or the spouse or child of an asylee or refugee.
  
  
• Diversity Visa (Lottery)
  You received a notice from the Department of State that you have won a visa in the Green Card Lottery.
  
  
• U.S. resident since before Jan 1, 1972
  You have continuously resided in the United States since before January 1, 1972. This is known as the “Registry.”
  
  
• Based on Cuban citizenship/nationality
  You are a native or citizen of Cuba, were admitted or paroled into the United States after January 1, 1959, and thereafter have been physically present in the United States for at least one year; or
  
  You are the spouse or unmarried child of a Cuban described above and, regardless of your nationality, you were admitted or paroled after January 1, 1959, and thereafter have been physically present in the United States for at least one year.
  
  If you were granted permanent residence in the United States prior to November 6, 1966, and are a native or citizen of Cuba, his or her spouse or unmarried minor child, you may ask to change the date your lawful permanent residence began to your date of arrival in the United States or May 2, 1964, whichever is later.
  
  
• There are other nationality-based programs, as well.
  
  

If “otherwise eligible” to immigrate to the U.S., immediate relatives may adjust status to legal permanent resident (LPR) (get a “green card”) in the United States even if they may have done any of the following:

• worked without permission,
  
  
• remained in the U.S. past the period of lawful admission (e.g., past the expiration date on your I-94) and filed for adjustment of status while in an unlawful status because of that,
  
  
• failed otherwise to maintain lawful status and with the proper immigration documentation, or
  
  
• have been admitted as a visitor without a visa under sections 212(l) or 217 of the Act (which are the 15-day admission under the Guam visa waiver program and the 90-day admission under the Visa Waiver Program, respectively).

Note: If a person entered the U.S. illegally, that person is barred from adjusting their status to permanent resident even if he or she marries a U.S. citizen or otherwise becomes an immediate relative. An immediate relative must meet the eligibility requirement of being “inspected and admitted or paroled into the United States.”

Generally, a person must be in status all the time in order to file an Adjustment of Status. Exceptions to this are, if the person has stayed illegally for less than 180 days, he/she can apply for an AOS. If he/she has stayed illegally for more than 180 days but the priority date is earlier than January 14, 1998 or qualifies under the LIFE act, he/she can still apply for AOS by paying a $1,000 fine. All other persons must go through consular processing abroad.

Ineligibility to Adjust Status

Unless you are applying for an creation of record based on continuous residence since before January 1, 1972, or an adjustment of status under a category in which special rules apply (such as a 245(i) adjustment, asylum adjustment, Cuban adjustment, special immigrant juvenile adjustment, or special immigrant military personnel adjustment), you are not eligible for adjustment of status if any of the following apply to you:

• You entered the United States in transit without a visa;
  
  
• You entered the United States as a nonimmigrant crewman;
  
  
• You were not admitted or paroled following inspection by an immigration officer;
  
  
• You are employed in the United States without USCIS authorization or you are no longer legally in the country (except through no fault of your own or for some technical reason). This rule does not apply to you if you are:
  • An immediate relative of a United States citizen (parent, spouse, widow, widower or unmarried child under 21 years old);
    
    
  • A K-1 fiancè(e) or a K-2 fiancè(e) dependent who married the United States petitioner within 90 days of admission; or
    
    
  • An H or I nonimmigrant or special immigrant (foreign medical graduates, international organization employees or their derivative family members);
    
• You were admitted as a K-1 fiancè(e) but did not marry the U.S. citizen who filed the petition for you; you were admitted as the K-2 child of a fiancè(e) and your parent did not marry the United States citizen who filed
  
  
• You are or were a J-1 or J-2 exchange visitor and are subject to the two-year foreign residence requirement and you have not complied with or been granted a waiver
  
  
• You have an A, E or G nonimmigrant status or have an occupation that would allow you to have this status, unless you completed a Form I-508 (I-508F for French nationals) to wave diplomatic rights, privileges, and immunities if you are an A or G nonimmigrant, unless you submit a completed Form I-566;
  
  
• You were admitted to Guam as a visitor under the Guam visa waiver program;
  
  
• You were admitted to the United States as a visitor under the Visa Waiver Program, unless you are applying because you are an immediate relative of a U.S. citizen (parent, spouse, widow, widower or unmarried child under 21).
  
  
• You are already a conditional permanent resident.