Adjustment of Status (Family Based)

Adjustment of Status (Form I-485) is an application filed by an alien who is physically in the United States to change his or her non-immigrant status (people entering U.S. on temporary basis) to immigrant status (people living permanently in U.S.). This is the mean by which one receives their “green card.” In order to adjust one’s status, one has to be eligible and cannot be statutorily barred. This process is “discretionary” and even if one has met all the requirements and is not statutorily barred, the USCIS may still deny an application based on other negative factors (fraud, criminal convictions, misrepresentation, etc.) But generally, with the right qualifying relative one may be granted an adjustment of status if they meet the requirements, even with a negative factor. This process usually begins by the qualifying U.S. citizen filing an I-130. The purpose of the I-130 is for a citizen or lawful permanent resident of the United States to establish the relationship to certain alien relatives who wish to immigrate to the United States.

First, the alien must be physically present in the United States. In cases where the petitioning alien is not in the U.S., then the proper process is a Consular Processing done in the alien’s country of origin.

Second, an immigrant visa must be immediately available to the alien. Aliens who have visas immediately available to them and do not have numerical limitation include: children, parents and spouses of United States Citizens. In order to qualify as a “child” under the immigration laws, one must be unmarried and under the age of 21. The remaining category of individual that are subject to a numerical annual quota for immigrant visas include: unmarried sons and daughters of U.S. citizens and their children; spouses, children, and unmarried sons and daughters of legal permanent residents; married sons and daughters of U.S. citizens and their spouses and children; and brothers and sisters, including spouses and children, of U.S. citizens ages 21 and over.

Third, in order to adjust status the alien must not be in the United States unlawfully, meaning the alien entered without inspection. One is considered to have been inspected when they presented themselves to an immigration officer at a U.S. port of entry.

Fourth, there must not have been any change in circumstances from the time the I-130 was filed and the time the I-485 is filed. i.e. A U.S. citizen spouse filed for his/her alien spouse and they are now divorced.

Fifth, the alien must not be in one of the categories that is barred from adjusting status.  The statutory bars are: unlawful status, failure to maintain status and unauthorized employment.

If you need more information on this or other immigration matters please contact Carabin Shaw 800-862-1260 - toll free.