Adjustment of Status (AOS) is the process through which a person who entered the U.S. with a non-immigrant visa (tourist visa, fiancé visa, student visa, H1B, J1, etc.) obtains lawful permanent resident status in the U.S.
Adjustment of Status Scenarios
Scenario 1. A foreign national enters the U.S. with a tourist, student, or other non-immigrant visa. The foreign national then is married to a U.S. Citizen. The U.S. Citizen may then file a petition to “adjust the status” of the foreign national to that of a Lawful Permanent Resident (LPR). This is the most common scenario.
Scenario 2. A foreign national enters the U.S. with an H1B or other non-immigrant visa. A relative of the foreign national (a U.S. Citizen or Lawful Permanent Resident) has filed an immigrant visa petition for the foreign national. The immigrant visa is approved and the U.S. Citizen or Lawful Permanent Resident must file a petition to “adjust the status” of the foreign national to that of a LPR.
Adjustment of Status Requirements
Generally, the foreign national must have entered the U.S. legally. This means that persons who were not inspected by a U.S. immigration official or “snuck” into the U.S. do not qualify.
An immigrant visa must be immediately available for the foreign national. Generally, if the foreign national is an Immediate Relative of a U.S. Citizen (spouse, unmarried child under the age of 21, or parent) an immigrant visa is immediately available. Otherwise, the foreign national must have an approved I-130 petition.
The foreign national cannot be “out of status.” A foreign national is “out of status” if they entered the U.S. legally but remained in the U.S. longer than authorized under the terms of their non-immigrant visa. For example, if a foreign national is admitted into the U.S. as a tourist for a period of 3 months and the foreign national stays in the U.S. for 9 months the foreign national is “out of status” and may not adjust his or her status. THIS PROVISION DOES NOT APPLY TO IMMEDIATE RELATIVES OF U.S. CITIZENS.
In some cases, persons who entered the country illegal may qualify for adjustment of status under 245(i) also know as the Life Act.
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