Changing to Immigrant Status While in the United States
Adjustment of status refers to the procedure by which an eligible applicant can become a permanent resident of the United States without having to return to his or her home country to apply for an immigrant visa. An alien outside the country cannot apply for adjustment of status. The Immigration and Nationality Act (INA) allows the change of an individual’s immigration status while in the United States from nonimmigrant to immigrant status provided that the individual meets all of the requirements to be eligible for a green card.
Eligibility for Adjustment of Status
Not everyone is eligible for adjustment of status. Under Section 245 of the Immigration and Nationality Act, certain requirements must be met before you can apply for adjustment of status:
You must already be eligible for a U.S. green card under the existing immigration laws (i.e., through an employer, through a family member, as a refugee, or through asylum);
If you are eligible for a green card through your employer or family, you must have an approved visa petition on file;
If you entered the country on a K-1 visa, you must be married to the person who petitioned for you to receive the visa;
If you entered the U.S. based on asylum or as a refugee, one year must have passed since that status was granted;
You must physically be in the U.S.;
You cannot have entered the U.S. in transit without a visa (TWOV) or under the Visa Waiver Program (VWP); and
Your visa status must be valid at the time you apply for an adjustment of status.
Each adjustment case is different, and the eligibility criteria listed above may be subject to certain exceptions depending on the specific circumstances of the case.
Form I-485 is the primary application form used by individuals seeking to adjust their status. The form itself is issued by the United States Citizenship and Immigration Services (USCIS) and can be downloaded online. Form I-485 requires the applicant to provide information such as the date of last arrival, Social Security Number, basis for eligibility for a U.S. green card, and a variety of other information.
While this form is the main document in the process, it is not the only paperwork that is necessary. Along with a completed I-485 form, applicants will likely need to submit the following: proof of eligibility for a green card, a biographic data sheet, a medical examination sheet, an affidavit of support as well as financial and tax documents, evidence of any criminal convictions, valid color photographs, required biometric information, and more.
In some cases, the USCIS will interview an adjustment of status applicant. Interviews currently are required for foreign nationals who are seeking to adjust their status from non-immigrant employment visas. Typically, the interview will last around 20 minutes. The officer conducting the interview will ask the applicant questions regarding his or her green card application and will verify the pertinent documents. An applicant going to an interview should bring a complete copy of his or her visa petition and adjustment status application as well as any documents that may be relevant to his or her application.
There is no time limit on when USCIS must make a decision after an interview in an adjustment of status case. Some adjustment of status applicants do not even require an interview. While there is no official timeline, the USCIS does aim to make a decision within three to four months after an interview.
Adjustment of Status Is Discretionary
Adjustment of status applications are entirely within the discretion of the USCIS officer handling the case. The USCIS can deny an application for adjustment even if the applicant meets all of the criteria. The USCIS will grant adjustment of status in cases in which all of the statutory requirements are met and there are no negative factors. If negative factors are present, they will be weighed in light of the overall application before a final determination is made. For example, strong family ties in the U.S may be a factor favoring adjustment. Contrarily, any evidence indicating that the applicant had the intent to remain in the U.S. at the time of entry to the country as a non-immigrant would be a negative factor.