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What are the requirements for I-485 adjustment of status?

Adjustment of Status (AOS) is a U.S. Immigration process wherein a foreign national who is physically present in the United States can apply to “adjust” his or her status to that of a lawful permanent resident. AOS is often confused with another process known as “Change of Status.” Change of Status is a process by which a foreign national who is physically present in the United States as a non-immigrant applies to change his status from one non-immigrant category to another. Adjustment of Status is a process that can only be used by foreign nationals who are physically present in the U.S. The result of a successful AOS petition is the granting of lawful permanent resident status.

What are the basic requirements for AOS?

In order to qualify to apply for AOS you must meet the following basic requirements:

  1. You must have been inspected and lawfully admitted to the U.S.;

  2. You must be in lawful status. *There is an exception for immediate relatives of United States Citizens;

  3. An immigrant visa must be immediately available to you; and

  4. You must otherwise be admissible to the United States.

*Important Note: The requirement that you must be in lawful status DOES not apply to immediate relatives (spouses, parents or children) of United States citizens. Thus, if you are an immediate relative of a citizen and are out of status you still qualify for AOS. See the following sections for further information about unlawful presence.

Lawful Admission to the U.S.

With a few exceptions, you must have been inspected and lawfully admitted to the U.S. to qualify for AOS. This means that you must have entered the country at a formal border crossing where you were inspected by an immigration officer and then lawfully admitted to the U.S. Persons who snuck across the border or otherwise entered the country illegally DO NOT qualify for AOS.

*Important Note: Some foreign nationals who entered the U.S. Illegally may qualify for adjustment of status under a section of law known as 245(i). A discussion of the requirements of 245(i) are beyond the scope of this Guide. However, if you entered the country and someone filed an immigration petition for you prior to April of 2001 you may qualify and should contact an immigration attorney for an evaluation of your case.

Unlawful Admission v. Unlawful Presence

One common area of confusion with AOS cases is the difference between unlawful admission and unlawful presence. As discussed in the previous section, unlawful admission is when a foreign national enters the country without being inspected and admitted by an immigration official. In contrast, unlawful presence is when a foreign national who is lawfully admitted remains in the country beyond the period of authorized stay. For example, let's assume that you entered the country on a tourist visa and were granted a period of six months to stay in the United States. If you did not depart the country prior to the expiration of the six month period you would be unlawfully present.

In general, persons who are unlawfully present in the country do not qualify for AOS. However, there is a rather large exception to this general rule. Immediate relatives of United States citizens who are unlawfully present in the country still qualify for AOS. Immediate relatives are defined as spouses, parents or children. Children must be unmarried and under the age of 21. The definition of children also includes step-child of the citizen provided that the parent/step-child relationship was created prior to the step-child's 18th birthday. For example, if the AOS applicant is married to a citizen and has a child who was under the age of 18 at the time of the marriage the child would also meet the definition of an “immediate relative.”

Immigrant Visa Immediately Available

Our family-based immigration system is a hybrid preference system that is subject to annual quotas. Each year there are a finite number of immigrant visas available for each specified group of family members of citizens and lawful permanent residents. Because each year there are more applicants for immigrant visas than there are visas available for many classes, many people are placed in a long waiting list which can mean waiting for 10 years or more. In general, whether or not a visa is immediately available to you depends on the nature of the applicant's relationship to the United States Citizen or lawful permanent resident petitioner.

Our immigration system gives special treatment to immediate relatives of citizens of the U.S. As discussed above, immediate relatives are spouse, parents or children of citizens. There are no annual quotas for immediate relatives; thus, if you are an immediate relative of a citizen a visa is immediately available to you.

If you are not an immediate relative of a citizen you must have an approved I-130 that has a current priority date in order to have an immigrant visa immediately available to you. For most people this means that in order to qualify for adjustment of status, a citizen or lawful permanent resident family member must have filed an immigrant visa petition for you several years ago. If you are not an immediate relative of a United States citizen and are unsure if you currently qualify for AOS please post this question about your case in my forum and I will assist you.

You Must be Admissible to the United States

AOS applicants are subject to all of the laws regarding admissibility just like an other immigrant visa applicant. There are several reasons why you might be inadmissible. Here is a non-exclusive list of some of the most common grounds of inadmissibility:

Deportation & Removal. Persons who have been previously deported or removed may be inadmissible.

Criminal Grounds. Persons who have been convicted of serious crimes (either in the United States or other countries) may be inadmissible. Generally speaking, all crimes which are felonies in this country are serious crimes but some misdemeanors may also render and applicant inadmissible.

Health Related Grounds. The most common health related ground of inadmissibility involves drug use or chronic alcohol abuse. Persons who are found to have used drugs that are illegal in this country or who abuse alcohol may be inadmissible. Additionally, persons who have certain infectious diseases or other serious health problems may be inadmissible.

Other Immigration Violations. Persons who have committed fraud or misrepresented a material fact in an attempt to obtain an immigration benefit may be inadmissible.

Voting & Claims of Citizenship. Persons who have previously claimed to be a United States citizen or voted in the United States are inadmissible.

You should also review all of the questions in Part 8 of Form I-485 before you proceed any further. If you answer yes to any of the questions in Part 8 or if any of the grounds of inadmissibility listed in this section may apply in your case you should consult with an immigration attorney prior to filing your AOS application.

If you would like assistance with your adjustment of status case please contact me for a free case evaluation.