Adjustment of status is the process by which an eligible individual already in the United States can get permanent resident status, a green card, without having to return to their home country to complete visa processing. Consular processing is an alternate process for an individual outside the United States, or who is in the United States but is ineligible to adjust status.
Adjustment of Status Steps:
Step 1. Determine Your Basis to Immigrate
The first step in the adjustment of status process is to determine if you fall into a specific immigrant category. Most immigrants become eligible for a green card through a petition filed on your behalf by a family member or employer. Others become permanent residents through other means such as obtaining refugee or asylum status.
Step 2. File the Immigrant Petition
When you know what category you believe best fits your situation, in most cases, you will need to have an immigrant petition filed on your behalf.
Family Based
Family based categories require that a relative, who is an U.S. citizen or permanent resident, must file a Form I-130, Petition for Alien Relative, on your behalf.
Employment Based
Employment based categories most often require the intending U.S. employer to file a Form I-140, Petition for Alien Worker, on your behalf. Entrepreneurs who intend to invest significant amounts of capital into a business venture in the United States may file Form I-526, Immigrant Petition by Alien Entrepreneur on their own behalf.
Special Classes of Immigrants
In some cases, certain immigrants may file a Form I-360, Petition for Amerasian, Widow(er), and Special Immigrant, or have one filed on their behalf.
Humanitarian Programs
Most humanitarian programs do not require an underlying petition, although individuals may need to meet additional requirements before they can adjust status.
Depending on the category you wish to adjust your status under, you may be eligible to have the petition filed at the same time that you file your Form I-485, Application to Register Permanent Residence or Adjust Status. This is called “concurrent filing.”
Immediate relatives of a U.S. citizen may be able to file concurrently. Also, other certain classes of individuals who have a visa immediately available may be able to file concurrently. However, most categories will require that you first establish your eligibility to adjust your status by first filing a petition and waiting for approval before you are allowed to file Form I-485; therefore, for these categories you will NOT be able to file concurrently.
Who can file concurrently?
- Immediate relatives of U.S. citizens living in the United States
- Most employment based applicants and their eligible family members when a visa number is immediately available
- Special Immigrant Juveniles
- Self petitioning battered spouse or child if:
- The abusive spouse or parent is a U.S. citizen, OR
- If an immigrant visa number is immediately available
- Certain Armed Forces Members applying for a special immigrant visa under Section101(a)(27)(K) of the Immigration and Nationality Act (INA)Special Immigrant International Organization Employee or family member
Step 3. Check Visa Availability
You may NOT file your Form I-485 until a visa is available in your category. If an immigrant visa is currently available to you, you may be able to apply for permanent residence status on Form I-485.
Visa Availability & Priority Dates
The Immigration and Nationality Act (INA) sets the number of immigrant visas that may be issued to individuals seeking a green card each year.
Immigrant visas available to “immediate relatives” of U.S. citizens are unlimited. In other words, these visas are always available. Immediate relatives include, parents of a U.S. citizen, spouses of a U.S. citizen and, unmarried children under the age of 21 of a U.S. citizen.
Immigrant visa numbers for individuals in a “preference category”, such as employment-based and other family-based (not including “immediate relatives”) are limited, so are not always available.
The U.S. Department of State is the agency that distributes visa numbers. Family sponsored preference categories – again, not including “immediate relatives” – are limited to 226,000 per year and employment based preference visa are limited to 140,000 per year. In addition, there are limits to the number of visas that are allotted to each country.
Because the demand is usually higher than the supply of visas every year for some categories, a visa waiting list exists. The Department of State gives out the visas by providing visa numbers according to the preference category and one’s priority date in order to distribute the visas among all preference categories. The priority date is used to determine an individual’s place in line on the visa waiting list. When the priority date is reached, the individual will be eligible to apply for an immigrant visa.
Your priority date can be found on Form I-797, Notice of Action, for the petition filed for you. The length of time you must wait in line before receiving an immigrant visa or adjusting status depends on:
- The demand for and supply of immigrant visa numbers
- The visa numbers allowed per country
- The number of visas allotted for your particular preference category
Priority Dates for Family Sponsored Preference Cases
For family sponsored immigration, the priority date is the date that the petition is properly filed with U.S. Citizenship and Immigration Services (USCIS). A “properly filed petition” refers to one that has the required signature(s), the correct filing fee, and any supporting documentation required at the time of filing.
Priority Dates for Employment Based Preference Cases
The priority date for an immigrant petition that is based on employment is either:
- The date the petition was properly filed with USCIS, OR
- The date the labor certification application was accepted for processing by the Department of Labor
U.S. Department of State Visa Bulletin
The U.S. Department of State publishes a monthly report of visa availability referred to as the “Visa Bulletin.” The monthly Visa Bulletin serves as a guide for issuing visas at U.S. consulates and embassies. USCIS also uses this guide to determine whether a Form I-485, Application to Register Permanent Residence or Adjust Status, may be accepted or adjudicated, because a visa must be available both at the time a person files Form I-485 and at the time of the final decision on the application.
Check Your Place on the Visa Waiting List
The Visa Bulletin allows individuals to check their place in the immigrant visa waiting list. The Visa Bulletin provides the cut-off dates for the different categories and countries for family, employment and diversity visas.
When Visa Numbers Are Available
If the demand for a given preference visa category and country of birth is less than supply, then those immigrant visas are deemed current, and get a chart designation of “C” for current. What this designation means is that immigrant visa numbers are available for all qualified overseas applicants and adjustment applicants in that particular visa preference category and country of birth.
When Visa Numbers Are Not Available
If the demand is more than supply for a particular visa category, then the Visa Office considers the preference visa category as “oversubscribed” and imposes a cut-off date.
In this instance, only overseas and adjustment applicants who have a priority date earlier than the date listed in the Visa Bulletin may be given an immigrant visa number. A visa is available to an individual, therefore, if his/her priority date is earlier than the date listed for that visa category and country. Visas are unavailable when the chart designation is “U” for unavailable.
Example: if a date of 15Sept02 is shown for individuals from China in the Family 1st preference category in the Visa Bulletin, visas are currently available for individuals with a priority date earlier than September 15, 2002.
Visa Retrogression
Sometimes, a priority date that is current one month will not be current the next month. This is called visa retrogression. This happens when more people apply for a visa in a particular category than there are visas available for that month. Visa retrogression most often occurs when the annual limit for that specific visa designation is reached. When the new fiscal year begins on October 1, a new supply of visa numbers is available and usually, but not necessarily always, brings back the dates to where they were before visa retrogression.
Cross-Chargeability
Employment based cases are open to visa “cross-chargeability” provisions for principal applicants, who may have a visa retrogressed priority date, have spouses from a country for which a visa cut-off date has not yet been reached and therefore may be able to obtain a visa through the allotted visa amounts provided to their spouse’s country of origin.
Step 4. File Form I-485, Application to Register Permanent Residence or Adjust Status
Regardless of whether a petition must be filed and approved prior to your filing Form I-485 or whether it may be filed concurrently, you will need to apply for permanent residence on Form I-485 at the appropriate time.
Note: There are a few categories that may require a different form than Form I-485.
When filing Form I-485, you must read the form instructions carefully and submit all required documentation and evidence required for your particular category. Failure to do so may result in your application being delayed or possibly denied for failure to establish that you are eligible to adjust status.
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Step 5. Go to your Application Support Center appointment (fingerprints)
You will be notified to appear at an Application Support Center for biometrics collection after you file your application. This usually means that your picture and signature will be taken and you will also be fingerprinted. This information will be used to conduct the required security check and for the eventual creation of your green card, employment authorization (i.e. work permit) or advance parole document.
Step 6. Go to your interview (if applicable)
You may be notified of the date, time, and location for an interview at a USCIS office to answer questions under oath or affirmation regarding your application. You must attend all interviews when you receive a notice.
When you come to your interview, you (and the family member that filed the Form I-130 petition on your behalf, if applicable) must bring originals of all documentation submitted with this application including passports, official travel documents, and Form I-94 regardless if they are expired.
Not all applications require an interview. USCIS officials will review each case to determine an interview is necessary.
Step 7. Get you final decision in the mail
After all paperwork has been received, interviews conducted (if necessary), security checks completed, and other eligibility requirements reviewed, your case will be ready for a decision by USCIS. In all cases, you will be notified of the decision in writing.
The granting of permanent residency is generally recorded as the date that you became a permanent resident. Refugees and certain humanitarian parolees (e.g. Cuban) will have their date of adjustment of status recorded as that of their entry into the United States as a refugee. Asylees, whether the principal filer or his/her derivatives, will have their date of adjustment recorded as 1 year prior to the date of being granted permanent residence.
Change of Address
You must advise USCIS of a change of address.
Appeal a Denial
Your decision notice will let you know if your application for adjustment of status is denied. If it is, the same decision notice will notify you of your appeal rights. Remember, not all denial decisions can be appealed. But if your decision can be appealed, you must file the appeal within 30 days of the service of the decision. You may also be able to file a Motion to Reopen or Reconsider. Both appeals and motions are filed on Form I-290B, Notice of Appeal or Motion.
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