Adjustment of status is a process for immigrants already in the United States to apply for a green card without having to leave the United States. This is the opposite of consular processing because in that case, it means that you are applying abroad and are in need of a Visa to enter the United States.

The short answer is this: It depends on your situation if you are allowed to apply in the U.S. or if you need to apply through a consular processing in your home country. The best thing you can do is consult an experienced attorney to identify the proper procedures for your unique case.  Below is some information on each process.

Adjustment of Status Procedures

There are plenty of ways for intended immigrants to apply for a Legal Permanent Status (LPR or also known as Green Card). The first order of business is to look at the eligibility requirements to obtain adjustment of status or an immigrant visa and see which category you fall under.

To see all of the categories that are possible to apply for, you may go to the USCIS webpage and click on Green Card Eligibility Categories. From there, you will be able to find where you belong in regards to applying for your Green Card. When you figure out your category, you will be able to see what is required from you in order to obtain your Adjustment of Status.

If any of the following conditions apply, you will not be eligible for the (AOS):

  • You are not in the U.S. Currently
  • Your current immigration status is invalid or expired
  • You came across the borders illegally
  • You came to America on a K-1 Visa (fiancé visa) and did not get married within 90 days.
  • You’re about to be deported
  • You came to the United States under the Visa Waiver Program (VWP) – unless you married a US citizen.

If any of these following conditions apply, you will be eligible for adjustment of status:

  • You are physically present in the United States
  • You meet the eligibility requirements for the green card that you are applying for
  • You’re in the USA on a valid Visa
  • You’re in lawful status
  • You have been approved for an I-140 or I-130 petition and plan on filing a concurrent application
  • You married your spouse within 90 days while here on a K-1 Visa
  • You have waited for a year after the asylum or refugee status
  • You’re eligible for adjustment of status due to the Immigration and Nationality Act.

The 90 Day Rule

Even after you qualify for an adjustment of status, something to take into consideration is the 90-day rule. Upon entering the United States with a non-immigrant visa, the U.S. government expects the time you spend in America to be the reason you entered the US with a non-immigrant visa. For example, the USCIS expects someone who comes to America as a student to remain in school. You are not to enter on a non-immigrant visa and immediately apply for adjustment of status since you then entered with an intent to immigrate.

To wrap things up, you need to have a valid visa to adjust your status. If you enter the U.S. with your only purpose of adjusting your status to a green card, that is in violation of your entry rules and would negatively affect your application. For example, let’s just say that you file an adjustment of status application less than ninety days after your arrival to the country. This case will have the USCIS questioning your true intentions for entering the country.

There are exceptions and exclusions, but most of the time, filing an adjustment of status application while on a non-immigrant visa in the United States has to comply with a lot of rules and regulations. 

What are the 5 steps for an adjustment of status Process?

After you confirm that you qualify to apply for Adjustment of Status (AOS), the steps listed below are the main steps you are going to need to take:

  1. You have to have your Green Card Sponsor File a I-130 Petition. This petition is usually filed by a U.S citizen or a Green Card holder who is asking the USCIS to allow you to live with them in the United States. Your sponsor needs to show he/she is a qualified family member and has a true and bona fide relationship to you.
  2. If your petitioner is an employer, your U.S. employer will need to file a Form I-140 for you. Rules to show a qualified I-140 petition for an employee has much more complex rules and regulations and an experienced attorney is a must to go through this application process.
  3. Once USCIS approves your I-130 or I-140 Petition, you will need to file a Form I-485. You can file an I-485 application concurrently with the I-130 or I-140 if your priority date is current. A nonconcurrent application means that you are not submitting Form I-30 and Form I-485 together. Once the USCIS approves the Form I-130 and your priority date is current, your next step will be to file Form I-485 which is an official application for adjustment of status. Also, if you want to work in the U.S. while you are waiting for your Green Card, you will have to file not only the Form I-485, you will also need to simultaneously file Form I-765. Another instance for when you need to file more than one form is for traveling abroad. You will need to submit Form I-131 in addition to Form I-485 and I-756. This will get you an Advance Parole travel document for your trip abroad while waiting for your Green Card. Keep in mind that for all forms that you fill out you have the corresponding documents that are required with the forms.
  1. Go to a Biometrics Appointment. A little while after you submit the application forms, the USCIS will need you to bring biometric information such as your photo, fingerprints and signature. They will then run these metrics for a criminal background check and run the information in the FBI’s database.
  2. Go to the Green Card Interview. Based on your application and criminal background check, the USCIS may or may not have you come to their office for the interview. The USCIS will ask you questions about your application and will want to see supporting documents.
  3. Your application will either be approved or denied by USCIS. Soon after your interview, you will find out what your application status is. If approved, USCIS will mail a physical green card to your address. For people who adjusted their status from a fiancé visa to a marriage card or those married to a US citizen for less than 2 years, you could get a conditional green card that will need to be renewed after it expires in two years.

What do you do if your adjustment of status is denied?

If your AOS is denied then you will no longer be in a lawful immigration status. Your work authorization card will become invalid and you will have to stop working. You will need to make plans quickly and return back to your home country or file for an appeal.  Most of the applications sent for appeal are denied, so you would need to plan carefully if you want to appeal your denial.

There are also times when the applications are rejected at the beginning  or end of the process. These are the reasons that your application can get rejected:

  • Filled out the form incorrectly
  • Paid the incorrect amount for filing fees
  • You’re just not eligible

With all of the different forms to fill out and USCIS procedures, the adjustment of status can be quite confusing. It is a complicated process and working with an immigration attorney that you can trust will make this process very smooth. The expert professionals at MC Law group can help.