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Adjustment of Status - How to Apply for a Green Card while in the U.S.

June 3, 2021
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Summary

You can apply for lawful permanent resident (LPR) status from your home country or the United States. If you apply from your home country, the process is called "consular processing". It will involve your local U.S. consulate or embassy. Alternatively, "adjustment of status" (AOS) is the process that you use to apply for a green card while you're present in the United States. When you adjust your status, you don't need to go to your home country to complete the permanent residence application process. This article explains everything you need to know about adjusting status to a green card, including eligibility and the step-by-step application process. The article also answers some frequently asked questions about adjustment of status.

Overview

What is Adjustment of Status?

Adjustment of status is the application process that certain foreign nationals present in the United States can use to apply for a green card. When you apply for a green card through an adjustment of status, you don't have to go back to your home country when your visa expires. You'll be allowed to remain in the United States until the U.S. Citizenship and Immigration Services (USCIS) completes their processing of your application.

Typically, you need to have a valid visa to be able to adjust your status. It's impossible to submit an adjustment of status application if you're not in lawful immigration status. Additionally, when you want to change your status to a green card, you must make sure that you are eligible for the type of green card you're applying for. You can't adjust status to a green card if you're not eligible to register permanent residence.

Who is Eligible for Adjustment of Status?

Generally, immediate relatives, asylees, and refugees can adjust their status to get a green card. You qualify to submit an adjustment of status application if you meet these eligibility requirements:

  • You're eligible for the green card type you're applying for.
  • You're physically present in the United States and came in on a valid visa.
  • You're in lawful status.
  • You have an approved I-130 or I-140 petition if you're not filing a concurrent application.
  • Your priority date is current if you're in a "preference category" (meaning, you have to wait for a visa number for your green card application type).
  • You're on a K-1 fiance visa, and you've married your U.S.-based spouse while your visa is still valid.
  • You've waited at least one year since U.S. Citizenship and Immigration Services (USCIS) granted you asylum or refugee status.
  • You're eligible for adjustment of status under Section 245(i) of the Immigration and Nationality Act (INA) - the heart of U.S. immigration law.

Who is not Eligible for Adjustment of Status?

Adjustment of Status is not available to all foreign nationals. You cannot submit an adjustment of status application to U.S. Citizenship and Immigration Services (USCIS) if any of the following apply to you:

  • You're not physically present in the United States.
  • You're not currently in valid immigration status.
  • You entered the United States unlawfully—without valid immigration status and inspection by a U.S. immigration officer.
  • You entered the United States on a K-1 fiancé visa but did not get married before the visa expired, or you're a dependent of a K-1 visa holder who didn't marry before their visa expired.
  • You're currently in deportation proceedings.
  • You're a conditional permanent resident.
  • You entered the United States under the Visa Waiver Program (VWP).
  • You entered the United States in transit without a visa.

What is the 90-day rule?

There are additional considerations to make even if you determine that you qualify for adjustment of status. One significant consideration is the "90-day rule." When you enter the United States on a non-immigrant visa, the U.S. government expects your stay in America to be according to the reasons you have your visa. For instance, if you come into the United States on a student visa, USCIS expects you to remain in school.And if you come in on a tourist visa, USCIS expects you to be a tourist.

So, while you need to have a valid visa to adjust your status, entering the United States with the sole purpose of adjusting your status to a green card will negatively affect your application. Suppose you file an adjustment of status application less than 90 days after you arrive in the country. In that case, U.S. Citizenship and Immigration Services (USCIS) could have reason to question your true intentions for traveling to the United States.

What is the Adjustment of Status Application Process?

After determining that you qualify to apply for an adjustment of status, there are five main steps you'll have to take to submit your application.

Step 1 - Green Card Sponsor Files I-130 Visa Petition

First, your green card sponsor will file a Form I-130 petition with U.S. Citizenship and Immigration Services (USCIS) on your behalf. You'll use Form I-130 to prove that you and your U.S. citizen or green card holder sponsor are family members and have a relationship that you can base your application on. 

For employment-based immigrant petitions, your U.S. employer will file a Form I-140 petition for you. For humanitarian-based green cards, your sponsor will file a Form I-730 petition for you.

If the U.S.government does not have quotas for the kind of green card you're seeking, you can choose to file a "concurrent application." This means you'll submit both Form I-130 and I-485 at the same time with the required supporting documents.

Step 2 - File Form I-485 Once USCIS Approves I-130 Petition

If you are filing a "nonconcurrent application," meaning you're not submitting Form I-130 and Form I-485 at the same time, your next step is to file Form I-485 once USCIS approves your I-130 petition. Form I-485 is the official application for an adjustment of status. You can only file it if you have a visa number available to you. You can check the U.S. Department of State's visa bulletin for more information about visa availability.

Additionally, if you'd like to work in the United States while you wait for your green card, you'll have to file Form I-765 together with Form I-485 to get work authorization. Similarly, if you'd like to travel abroad while waiting for your green card, you'll file Form I-131 with your Form I-485 so that you can get an Advance Parole travel document for your trip. For each of these forms, there are required supporting documents to send in with your application.

Step 3 - Attend Biometrics Appointment

Some time after you submit your application forms, USCIS will arrange a biometrics appointment for you to attend. You will have your biometric information like your photo, fingerprints, and signature taken for a criminal background check that USCIS will run in the FBI's database.

Step 4 - Attend Green Card Interview

Next, USCIS may or may not invite you to attend a green card interview at a local USCIS office. USCIS will decide based on the information they have of you from your application and the result of their criminal background check. At the green card interview, the USCIS officer will ask questions related to your application and the answers and supporting documents you submitted.

Step 5 - USCIS Approves or Denies Green Card Application

USCIS will send you a decision on your green card application shortly after your green card interview. They may either approve or deny your application. If they approve your application, you'll get your physical green card document in the mail shortly after. For people who adjusted their status from a fiancé visa to a marriage green card, you may receive a conditional green card that you'll have to renew when it expires in two years. 

You'll also be able to see the status of your green card application by entering your receipt number into the USCIS online case tracker.

What Happens if USCIS Denies my Adjustment of Status Application?

If U.S. Citizenship and Immigration Service (USCIS) denies your application, you'll no longer be in lawful immigration status. If you had a work permit from filing Form I-765 with your green card application, it will also no longer be valid, and you'll have to stop working. To not accrue unlawful presence, you should make plans to leave the United States as soon as possible.

USCIS may deny your adjustment of status application for a number of reasons. You may have filled out a form incompletely or incorrectly. You may have included the wrong filing fees for your application forms. During your green card interview, they may have found out that you're not eligible for the green card application type you applied for. All of these are reasons for USCIS to deny your green card.

In some circumstances, you can submit a new green card application but not as an adjustment of status if you don't have a valid visa. For example, if you didn't include crucial evidence that USCIS requested the first time or did not sign your forms, you can send a new application with the corrections. In other situations, you may not be able to apply for a green card again. For example, if USCIS denied your application because they determined you're not eligible for a green card. It's a good idea to talk to an immigration lawyer if USCIS denies your application.

Frequently Asked Questions About Adjustment of Status

There are some other additional things to know about adjustment of status (AOS)—how long U.S. Citizenship and Immigration Services (USCIS) takes to process AOS applications, how much it costs to file Form I-485, whether you can work or travel abroad while you wait for the green card, and how to track your AOS case status.

How Long Does it Take for Form I-485 to Get Approved?

It can take anywhere from 7 months to 6 years for USCIS to process your Form I-485 application, depending on the type of green card you're applying for. The length of your Form I-485 processing time could also depend on whether there are errors in your application and whether you provided insufficient evidence for your case. Sometimes, the processing backlogs at the USCIS office handling your application could also contribute to how long it'll take you to hear back on your application. USCIS regularly updates its website with application processing times.

How Much Does it Cost to Apply for Form I-485?

Generally, It costs a total of $1,225 to file Form I-485 if you're between the ages of 14 and 78—an $85 biometric fee and $1140 for processing. Any applicant under 14 years old filing Form I-485 with at least one parent only has to pay $750 to the U.S. government for their application. Refugees and asylees will not have to pay any filing fees to adjust their status to permanent residence. There's also a fee waiver available for Form I-485 if you can't afford the filing fees

Can I Travel While Form I-485 is Pending?

Yes, you can travel while Form I-485 is pending if USCIS has granted you Advance Parole. Advance Parole is a permit that will allow you to travel abroad while USCIS is processing your green card application and return to the United States without abandoning your application. If you leave the United States without Advance Parole, USCIS will bench your green card application, and you'd have to start a new one all over again. You can apply for Advance Parole by filing Form I-131 together with Form I-485.

Can I Work During the Adjustment of Status Process?

Yes, you can work in the United States while your adjustment of status application is pending if you have a valid Employment Authorization Document (EAD). You can’t work in the United States without an EAD. People applying for an adjustment of status are welcome to apply for work authorization as well. To do this, you'll file Form I-765 together with your Form I-485.

How do I Track the Status of my Adjustment of Status case?

You can check the case status for your adjustment application on the USCIS website. You'll need your receipt number from the receipt notice that USCIS sent you when they received your application. When you enter your receipt number into the USCIS case tracker, you'll be able to see the latest status update on your application.

Conclusion

Adjustment of status applications can be complicated, but working with a good immigration attorney can make it easier. If you can't afford the attorney fees and don't want to handle your green card adjustment of status case alone, we may be able to help. If you are eligible, our free web app will walk you through the process and help you prepare and file your application with the U.S. government. Click "Get Started" to see how we can help make your American dream come true!

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