Daniel M.Pell: Immigration & State and Federal Trial Practice.

Adjustment of Status

Adjustment of Status refers to the process before United States Citizenship and Immigration Services(USCIS) through which non-citizens obtain Lawful Permanent Residence(green cards).

Adjustment of Status can only be accomplished if the non-citizen is in the United States.

Adjustment of Status can be family or work-based.
If family based, the adjustment must be founded on a family member who files an application on an I-130 form to first establish the relationship between the non-citizen and the United States Citizen or Lawful Permanent Resident filing on behalf of the non-citizen.
If the U.S. Petitioner is a USC(United States Citizen) and is an ‘immediate relative’ of the non-citizen, the non-citizen can always obtain a green card once USCIS approves the I-130 Petition establishing the relationship between the Petitioner and USC.
This is because there are no limits on the number of visas available to immediate relatives of USC’s.
An immediate relative of a USC is his or her spouse, parent(if the USC is over 21), or child(if the child is unmarried and under 21).
The USC Petitioner files an I-130 and adjustment ‘package’, an I-485(adjustment application), biographical forms, G-325A’s, affidavit of support I-864, and if desired.

An application for work authorization on a form I-765. Of course, each of these forms requires extensive documentation to enable USCIS to grant the green card and work authorization. USCIS may require or waive a personal interview that establishes the relationship claimed to exist, between the sponsor(USC) and beneficiary(non-citizen).

So long as the non-citizen, immediate relative entered the United States lawfully (that is with a visa) the non-citizen is eligible to adjust status despite the fact that they overstayed their authorized period of stay(for example 6 months on a visitor visa) or work illegally.

The same is NOT true for applicant, non-citizens who wish to adjust their status to lawful permanent residence but who are NOT immediate relatives.

For example, the spouse or child of a lawful permanent resident or the married child over 21 of a USC, is called a ‘preference’ applicant. These individuals must ‘wait in line’ for a visa number to come current, and sometimes this can take many years. Preference applicants are subject to the per year visa cap(limit) on visas for family based Petitions.

The I-130 may be approved, for example, on January 1, 2009, but the visa number may not come current for five(5) years until January 1, 2014. The applicant MUST not work illegally, nor fail to maintain legal status in the U.S. until the date of his or her adjustment of status to lawful permanent residence.

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