Order Now!   FULL SERVICE ADJUSTMENT OF STATUS.

Adjustment of status refers to the procedure for becoming a lawful permanent resident without having to leave the United States.

Adjustment of status is discussed at §245 of the Immigration and Nationality Act ("INA"). According to INA §245(a), the status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:

1. The alien makes an application for such adjustment
2. The alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence
3. And, an immigrant visa is immediately available to him at the time his application is filed.

Adjustment Under INA §245(i)

Aliens in some of the above categories were previously permitted to adjust their status pursuant to INA §245(i) despite their ineligibility (by paying a penalty fee pursuant to that subsection). INA §245(i) expired on January 14, 1998. However, the recently enacted Legal Immigration and Family Equity Act of 2000 ("LIFE Act") extends INA §245(i) by replacing the old eligibility cutoff date with a new date of April 30, 2001.

This means that eligible aliens have until April 30, 2001 to file an immigrant petition or labor certification application to be eligible to adjust their status in the United States. Under the LIFE Act, INA §245(i) will be available to any beneficiary of a bona fide immigrant visa petition (an I-130, I-140, or I-360) or application for labor certification that is filed on or before April 30, 2001. All qualified beneficiaries will be "grandfathered-in" under INA §245(i) even if they don't actually apply for adjustment of status (by submitting form I-485) until after the April 30, 2001 deadline, as long as a bona fide immigrant petition or labor certification application is filed before that date.

It should be mentioned that the LIFE Act has added a new "physical presence" requirement. Applicants need to prove that they were actually in the United States on the date of enactment (December 21, 2000) in order to be eligible to use INA §245(i). Beneficiaries of immigrant petitions or labor certifications that are filed after the old deadline of January 14, 1998, but before the new deadline of April 30, 2001, will be required to prove that they were physically present in the United States on December 21, 2000.

The INA §245(i) penalty fee is still $1,000USD, and is in addition to any other filing fees levied by USCIS. The $1,000USD fee is paid at the time of filing the Form I-485A, which is submitted along with the standard application for adjustment of status (Form I-485).

Place of Filing

An application for adjustment of status is ordinarily filed with the USCIS district director in the district of the applicant's residence. However, as of November 29, 1996, all adjustment applications that are based on approved employment-based petitions, including those of entrepreneurs and dependents, are to be filed at the regional service centers.

Adjustment of Status is Discretionary

It is important to realize that adjustment of status is considered discretionary. USCIS may still deny an application for adjustment of status even where none of the statutory bars applies.

In practice, adjustment of status will be granted where the alien is statutorily eligible and there are no "negative factors." When such negative factors exist, the factors will be weighed to determine whether adjustment will be granted. Close family relatives, particularly immediate relatives, may be a strong factor favoring adjustment.

Preconceived intent to remain in the U.S. at the time of entry as a nonimmigrant, even though not resulting in fraud or willful misrepresentation, may be a sufficient negative factor to deny adjustment of status. However, immediate relatives of U.S. citizens can overcome such negative factors.

Advance Parole Required to Leave While Adjustment is Pending

According to 8 CFR §245.2(a)(4)(ii), an application for adjustment is considered abandoned if the alien leaves the United States while the application is pending. However, the alien may apply for advance parole prior to departing the United States to ensure that his or her application is not deemed abandoned. Advance parole is available for any legitimate personal or business reason.

Notwithstanding the above, on June 1, 1999, USCIS published an interim rule that allows H-1 and L-1 nonimmigrants (and their dependents) to travel outside the United States without abandoning their applications for adjustment of status, making advance parole unnecessary for these aliens. The interim rule was published in 64 FR 29209.

Ability to Work While Adjustment is Pending

An alien who has filed an application for adjustment of status may apply for an employment authorization in increments not exceeding one year during the period the application is pending (including any period when an administrative appeal or judicial review is pending.) This is an unrestricted employment authorization that permits the alien to work for any employer.

The alien may continue working pursuant to his or her existing nonimmigrant status, if such status permits employment. However, USCIS normally takes the position that, after the application for adjustment of status is filed, the alien has immigrant intent and is no longer eligible for extensions or changes of nonimmigrant status. For this reason, it is advisable to obtain an unrestricted employment authorization in most cases.

As a result of the June 1, 1999 interim regulation (mentioned above), aliens in H-1 or L-1 status (and their dependents) are not precluded from extending or maintaining their nonimmigrant status while their adjustment of status applications remain pending. An alien who continues to maintain H-1 or L-1 status rather than to obtain an unrestricted employment authorization will still retain such status if the adjustment application is denied.

If the alien is required to seek advance parole, he or she should apply for an unrestricted employment authorization. This is because an alien who is "paroled" into the United States is no longer within the nonimmigrant status he or she had before departure. Also, any derivative status of an accompanying spouse or child arising from the principal alien's previous nonimmigrant status is lost once the alien returns under parole.

Inspection and Admission or Parole

Basic eligibility for adjustment of status requires the applicant's prior inspection and admission or parole into the United States. The USCIS officer must have a "full and fair opportunity" to conduct the inspection before the alien is considered "inspected". An alien who enters based on an intentional false claim to U.S. citizenship has not been inspected. However, an alien who presents himself or herself for inspection before a USCIS officer as a passenger of a car will be considered "inspected" even where the USCIS officer does not question anyone in the car other than the driver. "Admission" occurs when the inspecting officer informs the applicant that the applicant is admissible and the applicant is permitted to pass through the port of entry. Generally, the alien's I-94 and/or the USCIS stamp in the alien's passport are proof of inspection and admission. However, a sworn affidavit or a copy of the alien's airplane ticket may be used where an I-94 or admission stamp is not ordinarily issued to the alien (i.e. visa-exempt aliens).

Get Your Adjustment of Status Now!