Aliens already physically present in the U.S. are allowed to immigrate without the need to leave the country in order to apply for an immigrant visa. This process is known as an Adjustment of Status (AOS). The USCIS allows an AOS application to be filed only when an immigrant visa is available immediately to the alien. General AOS provisions are governed by Section 245(a) of the Immigration and Nationality Act (INA). It should be noted that under 245(a) the AOS is viewed as a privilege the USCIS grants on a discretionary basis. Consequently, even when an alien meets all of the necessary requirements, USCIS may choose to deny AOS. In such cases, the alien may be required to follow consular processing or visa processing abroad. In order for USCIS to approve an AOS application, it is necessary for the applicant to have all security clearances and pass a medical examination.
What is Form I-485?
Form I-485 is used to apply for AOS. After an application is accepted, it will be checked to be certain it is complete, including submission of required initial evidence. USCIS may request additional evidence or information. In some instances, USCIS may request an applicant to appear in person at an USCIS office to attend an interview. Applicants may be further required to answer questions under affirmation or oath. Applicants must bring their Arrival-Departure Record (Form I-94) as well as any official travel documents or passport to the interview. Although a denial of an AOS application cannot be appealed, aliens may make a motion for their application to be reconsidered or reopened.
Filing for Adustment of Status (AOS)
The AOS is filed on the basis of an immigrant petition. An individual may apply for AOS if:
- An immigrant visa is available immediately based on an approved immigrant petition or the application is filed with a special immigrant juvenile petition, a completed relative petition, or special immigrant military petition; in which case, if approval is granted, an immigrant visa number would be made readily available to the applicant.
- It is based on being the child or spouse at the time that another AOS applicant (the principal) files to adjust status or at which time an individual is granted permanent resident status within an immigrant category that would allow derivative status for children and spouses. In the event that a child or spouse is in the United States, the individual derivative may choose to file their AOS along with Form I-485 for the principal applicant or may elect to file Form I-485 at any time after which the principal receives approval, should a visa number be available.
- In the event that a child or spouse resides abroad, the individual adjusting status in the United States should file Form I-824 (the application for Action on an Approved Application or petition) at the same time with the principal’s Form I-485 in order to allow the derivative to immigrate to the United States without any delay, provided the principal’s adjustment of status is approved;
- It is based on admission as the fiancée or fiancé of a United States citizen and marriage occurs within 90 days of entering the United States. The K2 child of the fiancé may apply for adjustment of status based on his or her parent’s Form I-485;
- It is based on an asylum granted in the U.S. provided the applicant is present physically in the United States for one year following asylum being granted and still qualifies as the child or spouse of a refugee or as an asylee;
- It is based on refugee status after having been admitted as a refugee and has been present physically in the United States for one year after such admission, provided the refugee status has not been revoked;
- It is based on Cuban nationality or citizenship and the applicant in question was paroled or admitted into the United States after January 1, 1959 and has been present physically in the United States for a minimum of year afterwards or the applicant is the unmarried child or spouse of a Cuban as described above and was paroled or admitted after January 1, 1959 regardless of nationality, and has been physically present in the United States for a minimum of one year.
- The applicant is applying for a change of date on which his or her permanent residence started. If the applicant was granted permanent resident residence in the United States before November 6, 1996 and is a citizen or native of Cuba, or the unmarried child or spouse of such an individual, he or she may request a change to the date at which time his or her unlawful permanent residence started to the date of the applicant’s arrival in the United States or May 2, 1964, whichever data is later.
- If it is based on the continuous residence of the applicant in the United States since prior to January 1, 1972, it is referred to as “Registry.”
Recent Expansion of AOS
Over the last several years, AOS provisions have expanded (under Section 245(i)) to cover aliens who were previously ineligible, including individuals who entered the country without inspection, who were engaged in unlawful employment, or who otherwise overstayed, in order to adjust status. In 2000, a rather limited “grandfather” provision was enacted, known as the LIFE Act, which allowed an alien whose sponsor had filed an immigrant visa petition or labor certification by April 30, 2011, thereby preserving his or her eligibility in order to adjust status under 245(i), provided they were physically present in the U.S. on December 21, 2000. Such ineligible individuals could then take advantage of AOS benefits by paying a penalty fee separate from the normal fee.
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Due to the complex nature of any immigrant visa or adjustment of status case, it is recommended that you consult with a legal professional before pursuing. Call our office or send us a message online to schedule a consultation to discuss your options. Call us today to learn how we can assist you!