Adjustment of Status (AOS) - The Green Card Application Process

Generally speaking, adjustment of status is the process in which a foreign national who is presently in the United States apply for a green card and become a permanent residents. There are a few ways in which a person may adjust his or her status. The most common way in which a person can obtain a green card and become a U.S. permanent resident is through a family sponsorship, family-based immigrant petition. The second method in which a foreign national may obtain permanent residency is through an employment-based petition. Third, a person may adjust his or her status and become a green card holder is through self-petition. Self-petition is a process in which a person files for his or her own behalf, rather than relying on an employer or a family member. Self-petition is a available for refugee and asylee (I-589), those that are approved under the Violent Against Women Act, I-360 petition (VAWA), special juvenile petition (I-360), refugee resettlement programs, foreign nationals that are victims of crimes under U visas, and trafficking victims under T visas. The New York Adjustment of Status Application Attorneys and the New York Green Card Application Lawyers have assisted numerous clients in obtaining U.S. permanent residency statuses. Please contact our Brooklyn, New York office at 718-934-0190.


Requirements for Adjustment of Status (Green Card Application)


To be eligible for adjustment of status and apply for a green card, several requirements must have been met. First, there must be a basis for which the foreign national can obtain a green card. That is, the applicant must be qualified for one of the categories stated above. Outside of these categories, a person will not be eligible for adjustment of status and the application would be rejected.

a visa must be immediately available for such applicant at the time of filing. Some family-based immigrant petitions (I-130) and employment-based immigrant petitions (I-140), a visa is immediately available at the time of filing the immigrant petition, while others required a awaiting period (retrogression) before a visa is available. In later case, the foreign national may not file an application for adjustment of status (I-485) until a visa is available for such person. Further, if the applicant is a nonimmigrant, he or she must maintain such status until a visa is available and an adjustment of status application is filed. Even then, foreign nationals are encouraged to maintain their nonimmigrant status just in case the USCIS rejects or deny the adjustment of status application. The is the only way to ensure that the applicant will not fall out of status, over-stay, his or her visa, which may have immigration consequences (3 or 10 years bars from entering the U.S.)

, the applicant must be physically in the U.S. If the immigrant applicant or beneficiary is outside the U.S., such person must file an immigrant petition with the USCIS in the District Office in which the Petitioner (Sponsor) is located. After the immigrant petition is approved by the USCIS, the National Visa Center (NVC) would process the immigrant visa application and forward to the U.S. Consular Office abroad. The Consular Officer would have to interview the visa applicant abroad and issue an immigrant visa. In which case, a green card will be automatically available for such person within 4-6 weeks upon entering the U.S.

, the applicant must not be an “unlawful alien” who overstayed his visa status for 180 days or more, or if the person entered the U.S. “without inspection,” (also known as “illegal” or “EWI”). Also, a person that has been ordered to appear in immigration court by issuance of a “Notice to Appear” or “NTA” for removal proceedings, may not adjust their status with the USCIS. Such person must appear and apply with the Immigration Judge. Further, foreign nationals who entered the U.S. without inspection, regardless of whether such person is currently in removal proceedings, must file for an immigrant visa through the U.S. Consular Office their home country once the I-130 Petition or the I-140 Petition has been approved. In addition, an EWI will be required to file an I-601 Inadmissibility and Extreme Hardship Waiver with the Consular Office. Procedures to file the I-601 and I-212 Inadmissibility Waivers varied from one Consular Office to another. Please contact the New York I-601 Inadmissibility Waiver Attorneys or the New York INA Section 212(h) and 212(i) Extreme Hardship Waiver Lawyers at Pham & Cloves, PLLC. for more information.

Fifth, to qualify for adjustment of status, there must be no change of circumstance that would make the applicant not being able to adjust. Although a change of circumstances in the relationship between the adjustment of status applicant and the underlying sponsor/petitioner usually disqualifies the petitioner, some change of circumstances may still qualified the green card applicant. For example, if the applicant is “aged out,” turned 21, after the adjustment application was filed, but before it was approved, the Child Status Protection Act of 2002 allows such applicant to proceed with the application. However, if the single child under the age of 21 late5r gets married while the application is pending, he or she is no longer qualified. The same can be said with couples of get divorce prior to the application is approved.

Finally, in order for a person to adjust status and become a permanent resident, such applicant must not be “statutory barred.” That is, the person must not fall under one of the categories that are designated by Congress as a person that cannot adjust status as a matter of law. The following are a list of statutory barred applicants.

Statutory-Bar From Adjustment of Status

Foreign Nationals who engaged in the unauthorized employment, those who were not in lawful status (overstayed their visa for at least 180 or more), or those who have failed to continuously maintain status for even only one day, are barred from adjustment of status.

Those that entered the U.S. under J-1 or J-2 exchanged visitor visas, unless they have filed and received an approved J-Visa waiver from the required return to the applicant’s home country for a period of 1 or 2 years.
K-1 finance visa holders who failed to marry their sponsoring “spouse” within the required 90 days, or those that married another U.S. citizen or permanent resident other than the K-1 sponsor.

Those that are likely to be a public charge, someone that will most likely be dependent on public assistance.
Those that entered the U.S. under a visa waiver pilot program, not to be confused with the visa waiver program of certain privileged countries.

Crewmen under D Visa and “Transit Persons” who do not possess a visa.
Those that are currently in removal proceedings. Those that are a removable alien under the INA, such as those that committed an aggravated felony or a crime involving moral turpitude (CIMT).

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