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US Adjustment of Status Requirements

US Adjustment of Status Requirements

If you’re currently living in the US under a nonimmigrant visa, but are looking to apply for an immigrant visa, also commonly known as a green card, you will need to know how to adjust your temporary status to that of a lawful permanent resident.

The following guide looks at the US adjustment of status process, from what this is, to the requirements applicants need to meet.

 

What is adjustment of status?

Once you are in receipt of an approved immigrant petition ‘and’ an immigrant visa number is available to you, where applicable, you can apply for a green card through either an adjustment of status from within the United States or via an overseas consular processing.

Adjustment of status is the procedure through which a noncitizen already present in the United States can apply to US Citizenship and Immigration Services (USCIS) for lawful permanent residence. This essentially means that you can become a permanent resident without having to return to your home country to complete your immigrant visa processing. The in-country process to adjust a person’s status applies equally to employment-based or family-based green cards, as well as other ways of becoming a permanent resident.

In contrast, if you are outside the United States, your US sponsor can file an immigrant petition with USCIS on your behalf, but you must obtain your visa abroad. This means that you will need to apply at a US Embassy or Consulate for an immigrant visa and be admitted to the US as a permanent resident. This overseas pathway is known as consular processing.

 

Who can apply to adjust their status?

Some overseas nationals can become permanent residents by obtaining refugee or asylum status, or through other special provisions. However, most immigrants will become eligible for a green card through a petition filed on their behalf by either a US employer or family member. Below we provide two illustrative examples of applying for adjustment of status, including both an employment-based immigrant visa and a family-based immigrant visa.

 

Adjustment of status as an L-1 intracompany transferee

The L-1 intra-company transfer visa is a nonimmigrant work visa for employees of multinational organisations working within either an executive or managerial role (the L-1A visa), or employees with specialised knowledge of an organisation’s products, procedures or management (the L-1B visa), enabling them to be transferred to either a parent, branch, affiliate or subsidiary of the same entity in the US on a temporary basis.

The L-1A visa (for overseas executives or managers) and the L-1B visa (for specialised knowledge employees) will both initially be granted for up to 3 years, although they can each be renewed in increments of 2 years, until reaching the maximum permissible length of stay. This will depend on the subcategory of visa held, where the L-1A visa can be renewed for a maximum of 7 years, whilst the L-1B visa can be renewed for 5 years.

However, if you are working in an affiliated office in the US as a multinational executive or manager, but are looking to settle on a more permanent basis, you can apply to change from nonimmigrant to immigrant status. This is because the L-1A visa is a dual intent visa, allowing the visa-holder to take steps towards obtaining lawful permanent residence whilst physically present in the US. An L-1A dual intent visa essentially allows you to lawfully enter the US on a time-limited nonimmigrant basis, albeit with immigrant intent, enabling you to apply for an adjustment of status. However, to successfully go from an L-1 visa to an EB-1 visa, an employment-based green card, you must meet various strict eligibility criteria.

You may qualify for an employment-based first-preference EB-1 visa if you are a certain multinational executive or manager that meets all of the relevant requirements. For those who are currently working in a non-management role, but have specialised knowledge of their employer’s business, you may instead be eligible for an employment-based second preference EB-2 visa. You will qualify for an EB-2 visa if you hold an advanced degree in your profession, or its equivalent, or you can show exceptional ability.

 

Adjustment of status as a K-1 foreign fiancé(e)

The K-1 nonimmigrant visa, also known as a fiancé(e) visa, is for the foreign fiancé(e) of a US citizen who is planning to come to the United States to get married and set up life there. To be granted a K-1 visa, you and your proposed husband or wife must intend to get married within 90 days of you entering the United States as a K-1 nonimmigrant. Your marriage must be bona fide, meaning both you and your US fiancé(e) intend to establish a life together and the marriage is not for the sole purpose of securing a green card.

If you marry your fiancé(e) within a period of 90 days of being admitted to the US as a K-1 nonimmigrant, you can apply for lawful permanent resident status. If you were married for less than 2 years at the point at which your adjustment of status application is approved, USCIS will issue a green card valid for 2 years, granting conditional permanent resident status. You will need to remove the conditions on your residence shortly before this expires.

Importantly, if you do not marry your US fiancé(e), you generally cannot apply for a green card based on any other category. This means that if you would still like to become a permanent resident, you may need to leave the US to seek a green card on a different basis.

 

How to apply for adjustment of status

The process to apply to adjust your status will depend on your existing nonimmigrant visa, but will typically involve both a petition process and an adjustment of status application. For example, to petition for an EB-1 visa, your US employer must complete and submit Form I-140 (Immigrant Petition for Alien Worker) with USCIS. Similarly, to petition for an EB-2 visa, your employer must file Form I-140, although employment-based second-preference petitions must also be accompanied by a certified Application for Permanent Employment Certification from the Department of Labor (DOL) on ETA Form 9089.

Once you are in possession of an approved immigrant petition, you can file Form I-485 (Application to Register Permanent Residence or Adjust Status), although there are certain circumstances in which you may be allowed to file Form I-485 before USCIS approves your petition, known as concurrent filing. Having filed the necessary form(s) and paperwork, you may then be required to attend an adjustment interview and to enrol your biometrics.

For K-1 nonimmigrants, fiancé(e) beneficiaries of Form I-129F may file Form I-485 after marrying the US petitioner within the requisite 90-day period. If granted conditional residence, you will later need to apply to remove these conditions prior to expiry of your conditional status using Form I-751 (Petition to Remove Conditions on Residence). Your green card expiration date is also the date of your second anniversary as a conditional permanent resident. If you fail to apply to remove the conditions in time, you could lose your conditional resident status and potentially be removed from the country.

For all applications within the adjustment of status process, a number of documents will need to be submitted in support. For the adjustment of status application itself this could include a copy of Form I-797 (Approval Notice) following the grant of the immigrant petition if you are applying as a beneficiary in possession of an approved petition. Other documentation could include Form I-693 (Report of Medical Examination & Vaccination Record), Form I-864 (Affidavit of Support) to show adequate means of financial support and, where applicable, Form I-601 (Application for Waiver of Grounds of Inadmissibility).

 

How much does the adjustment of status process cost?

The overall costs involved in the adjustment of status process will depend on the forms being filed, but there will be a fee for both the petition and Form I-485.

For Form I-140, Immigrant Petition for Alien Worker, the fee is $700, whilst the fee is $535 for Form I-129F, Petition For Alien Fiancé(e). The fee for Form I-485 is $1225, including a fee of $85 to enrol your biometric information, ie; your fingerprints and photograph.

 

How long does the adjustment of status process take?

The Immigration and Nationality Act (INA) sets the number of immigrant visas that can be issued to those seeking lawful permanent resident status in the US each year. Immigrant visas for immediate relatives of US citizens are unlimited, so these are always available. If you marry your US citizen petitioner within 90 days of being admitted as a K-1 nonimmigrant, you will be treated as an immediate relative. However, employment-based green cards are limited to 140,000 each year. In addition, there are also limits as to the percentage of green cards that can be allotted to each country.

Where the demand is higher than the supply of immigrant visas for a given year in any category or country, a backlog will form. To distribute the visas amongst all preference categories, the Department of State — the agency that distributes immigrant visa numbers— allocates the visas according to an immigrant’s preference category, country of chargeability and their priority date to determine an immigrant’s place in the visa queue. It is only once an immigrant number is available to you that you can file Form I-485.

The waiting time before receiving a green card will all depend on the demand for and supply of immigrant visas at any given time, together with per-country visa limitations and the number of visas allocated to your preference category. As such, you may need to wait several months, or sometimes years, before an immigrant visa number becomes available to you within an employment-based preference category, allowing you to file Form I-485.

Having filed Form I-485, the processing time will then depend on the service centre where the application is being dealt with, although this is again likely to be in the region of several months or even longer. For example, the average processing time for 80% of employment-based adjustment applications in New York City is 20.5 months, compared with 19.5 months in New Orleans. Equally, the average processing time for family-based adjustment applications in New York City is 16.5 months, compared with 28 months in New Orleans.

 

What if an adjustment of status application is refused?

An application for adjustment of status may be refused for a number of different reasons, from failing to meet the eligibility requirements for a particular category of immigrant visa to being barred from adjusting status, such as where you are in violation of US immigration law. There may also be inadmissibility issues, such as problems regarding criminal history, national security threats or medical matters. In any scenario, advice should be sought from an immigration attorney, where you may be able to file a motion to reopen or to reconsider.

Importantly, given the privileges, rights and responsibilities associated with lawful permanent residence status, an applicant who meets the statutory and regulatory eligibility requirements will not be automatically entitled to adjustment of status. The burden of proving that you warrant a favourable exercise of discretion by USCIS lies with you, where USCIS will have regard to things like any close family, community and residence ties, your immigration status and history, as well as your community standing and moral character.

 

Avoiding an adjustment of status refusal

Various tips for filing Form I-485 can be found on the USCIS website, from ensuring that your application is completed accurately and you submit the right documentation in support, to marking the envelope with the specific nature of your submission, for example, “Application to Register Permanent Residence or Adjust Status (Form I-485)”. There are also detailed instructions accompanying Form I-485 addressing frequently asked questions.

However, by seeking expert advice from an immigration attorney, they can help you to successfully navigate your application for a green card, and to gather the necessary evidence in support, maximising the prospects of a positive outcome first time round.

 

Need assistance?

NNU Immigration are London-based US attorneys dedicated to US immigration and nationality law. We advise employers and individuals on all types of US immigration applications, including adjustment of status. Contact us for specialist advice.

 

Adjustment of status FAQs

How long does it take for adjustment of status?

Each adjustment of status case is different, where the length of the process to obtain a green card can vary. For information about current processing times for different immigrant visas visit the US Citizenship and Immigration Services (USCIS) website.

 

What is the difference between adjustment of status and green card?

Adjustment of status refers to the application process to obtain a green card whilst a noncitizen is physically present in the United States. This will enable an eligible applicant to adjust from temporary nonimmigrant status to lawful permanent residence status.

 

Can I stay in the US while waiting for adjustment of status?

Provided you are currently in the US under valid nonimmigrant status, you can stay whilst applying for adjustment of status to become a lawful permanent resident using Form I-485, Application to Register Permanent Residence or Adjust Status.

 

How much is the adjustment of status fee?

The fee to file Form I-485 (Application to Register Permanent Residence or Adjust Status) is $1225. There will also be a fee for your US sponsor to file an immigrant petition with US Citizenship and Immigration Services on your behalf.

This article does not constitute direct legal advice and is for informational purposes only.

Author

Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law (AILA) and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with both US and UK operations to meet their workforce needs through corporate immigration.

Nita successfully acts for corporations and professionals, entrepreneurs, artists, actors, and athletes from across the globe, providing expert guidance on all aspects of US visa and nationality applications, and talent mobility to the USA.

Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

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