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Adjustment of Status to Stay in the U.S.

Individuals born outside of the United States who lack lawful permanent resident status (or a "green card") may stay in the country through a process called "adjustment of status," as long as they meet the necessary criteria. Adjustment of status typically involves a nonimmigrant visa holder or parolee (temporary) converting to immigrant status, thereby obtaining a green card for lawful permanent residence.

Those who are outside the U.S. or are otherwise ineligible to adjust their status while inside the country may seek a visa abroad and enter the U.S. as a permanent resident under a pathway called "consular processing."

This article covers the criteria for eligibility and the steps for staying in the U.S. through adjustment of status.

Adjusting Your Immigration Status: Eligibility

Those wishing to adjust to immigrant status must physically be present in the U.S. and must have entered the U.S. legally (with some exceptions, including battered family members). Whether or not you are eligible to adjust your status is determined by your basis to immigrate (detailed below): ie, whether it is family based, employment based, part of a humanitarian program, or a special case (see instructions for Form I-360 for more details).

Adjusting Your Immigration Status: Steps

After you have determined your basis to immigrate, such as whether a family member or employer may petition on your behalf, you are ready to begin the process of adjusting your status. The following steps are meant to serve as a general guideline, but some cases may benefit from the counsel of an immigration attorney.

1. File a Petition

In most cases, someone else (a family member or employer) will have to file a petition on your behalf. In some cases, you may be able to file your petition (or have it filed on your behalf) at the same time you file an Application to Register Permanent Residence or Adjust Status (Form I-485). See the USCIS page "Concurrent Filing" for details.

Below are the main types of immigrant petitions:

  • Family: A U.S. citizen or lawful permanent resident (LPR or green card holder) will have to file a Petition for Alien Relative (Form I-130) on your behalf. See our "Family Visas" subsection for more information.
  • Employment: A prospective U.S. employer will be required to file a Petition for Alien Worker (Form I-140) on your behalf. See "Employment Based Visas" for more details.
  • Special Immigrant Classifications: Certain classes of immigrants may file their own petition or have one filed on their behalf. To learn more about special classes of immigrants, see the instructions for Form I-360.
  • Humanitarian Programs: Petitions are not always required for adjustment of status based on humanitarian programs. See the USCIS page "Humanitarian" for more details.

2. Check Availability of Visa

The number of visas available each year in a given category is always limited, so you want to make sure an immigrant visa is available before applying for permanent residence. See the USCIS page "Visa Availability & Priority Dates" for more information.

3. File an Application to Register Permanent Residency or Adjust Status

You must apply for permanent residence via Form I-485 regardless of whether a petition must be filed first or if it may be filed concurrently. Some categories may require a different form.

4. Submit to a Photograph and Fingerprinting

Biometrics data, including a photograph and fingerprints, will be collected at the nearest Application Support Center (you will be notified by mail). This data is used for security background checks and the creation of a green card. See the "USCIS Service and Office Locator" to find a location near you.

5. Submit to an Interview, if Applicable

USCIS officials will notify you about any necessary interviews to answer questions under oath or for affirmation with regard to your application. Notifications will include the date, time and location of the interview(s). Make sure you bring original copies of all documentation filed with the application (including passports and all forms).

6. Wait for Final Decision

USCIS will notify you in writing whether or not your petition for permanent residency has been approved. If your address had changed since filing your petition, follow the directions outlined in the USCIS "Change of Address" page.

If you have questions about your status or adjustment of status filing, call the USCIS National Customer Service Center at 1-800-375-5283. You may also check your application status online by following the "My Case Status" link.

You may appeal the decision if your adjustment of status application is denied. While not every decision may be appealed, your decision notice includes specifics about your appeal rights and how to file an appeal. For more details, see the USCIS page "Questions and Answers: Appeals and Motions."

Get Legal Help with Your Adjustment of Status to Stay in the U.S.

Immigration laws are notoriously complicated and applicants within the adjustment of status process are in a particularly precarious position. It's best to contact a local immigration attorney who can help ensure that you're eligible to adjust your status to remain in the U.S., and prepare for potential challenges to your application.

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