Adjustment of Status

In certain situations, it is possible for an alien admitted or paroled into the US to adjust status to that of permanent resident of the United States. Adjustment of status is therefore a very important step that allows the foreign national to become a US permanent resident without traveling back to his or her home country.

Adjustment of status can have important implications and prevent certain aliens from running afoul of the so called three- or ten-year bans to reentry. In other cases, adjustment of status is just a matter of convenience to avoid to the foreign national the costs and disruptions of traveling back to his or her home country to obtain approval of the immigrant petition at the local US Consulate. Not all intending immigrant can go through adjustment of status. A visa number must be immediately available at the time the immigrant petition is filed, as it is normally the case for immediate relative petitions (spouses and minor children of US citizens).

For employment-based immigrant visa petitions, this means that the employer must have filed in a category that is not backlogged i.e. a category for which the current numerical limits on issuance of immigrant visas have not been met.  As of this writing, backlogs have developed in most employment based categories, including the formerly available EB-3 for skilled workers. For workers in this category it is no longer possible to simultaneously file an I-140 petition for immigrant worker and an I-485 application for adjustment of status. Absent other independent reasons for the alien to be legitimately in the US, such as an approved and valid H1B visa, L1 visa, E2 visa, or other nonimmigrant visa, the aliens will therefore be forced to wait for his visa to become current outside of the United States.

Other obstacles to adjustment of status are previous immigration violations, such as visa overstays and unlawful presence, and unauthorized employment, again with the important exception of immediate relatives of US citizens who are normally allowed to adjust status notwithstanding this immigration violations.

Normally, an interview will be scheduled at the local USCIS office having jurisdiction over the alien place of residence. In family-based cases, the petitioner must normally appear and confirm his or her continued desire to “sponsor” the alien for adjustment of status. This may cause problems, especially in family-based cases where the personal circumstances of the petitioner and beneficiary may have changed. It is not altogether uncommon for the couple to have split, and for the U.S. petitioner to refuse to show up at the interview.

While this is in most cases fatal to the outcome of the adjustment of status application, which under normal circumstances will be denied, it is possible for the beneficiary who has been subject to domestic abuse to obtain the right to self-petition for his or her own adjustment of status. This special procedure is made possible by the provisions of the Violence Against Women Act and attending regulations. However, it is crucial to raise the issue timely so that the adjustment of status be not denied. The assistance of an experienced immigration attorney is highly recommended in all these cases to avoid mistakes that can jeopardize the applicant’s chances to remain in the United States.

Other common issues on adjustment of status are evidence of the parties’ good faith (both for marriage cases and, in minor part, for employment-based cases), ability to pay issues for employment cases, and whether or not prior immigration violations should cause a denial of the adjustment application. For this and many other issues surrounding adjustment of status practice, the Law Office of Giuseppe Scagliarini can provide effective assistance through timely, effective information, clear and concise review of the client’s options, filing of the adjustment application or VAWA self-petition, and representation at the adjustment interview.

If you need a skilled immigration attorney to represent you in connection with you application for adjustment of status, please do not hesitate to contact us to schedule a paid telephone or in person consultation.