In this article we will discuss who can adjust status in the US and under what basis. The article will concentrate on obtaining permanent residence based on family petitions, VAWA, Special Immigrant Juvenile, U and T visa, Cancellation of removal, and asylum.
Adjustment of status is the process of applying for permanent residence through application I-485. In order to get to that stage though there are two requirement you must meet. First, you need to have an approved underlying petition (I-130 family based, I-589 asylum, I-360 VAWA, I-360 SIJ, I-360 other special immigrants, I-360 widow/er, I-918 U visa). Then, you must also be admissible. To be admissible is a term of art and we will discuss what that means separately.
You can have an approved I-130 Family petition if you are a family of a US Citizen or a Permanent Resident.
However, family though is not all the same in the eyes of immigration. There is immediate family and other family.
Immediate Relatives enjoy special priority and as such do not have to wait in line for a visa number to become available. So, the list of immediate relatives are only three specific categories:
1. Spouse of a United States citizen, and
2. Unmarried child (of a United States citizen) under the age of 21, and
3. Parent (if the U.S. citizen child who is over the age of 21)
Everyone else, falls within a preference category and has to wait for a visa to become available in order to qualify.
• Unmarried adult children of U.S. Citizens and Permanent Residents
• Spouses and Children of Permanent Residents
• Married children of U.S. Citizens
•Siblings of Adult U.S. Citizens
Say, your I-130 petition is approved. Now, in order for you to continue with adjustment of status, you need to know if you are admissible. Let’s see that that means.
Legal Entry – Immediate relatives who entered with certain visas and were inspected by an immigration officer can obtain their permanent residence in the United States. And then there is,
lawful Status – if you are immediate relative, whether you are currently in lawful status or not is irrelevant.
Also, unauthorized work – if you are an immediate relative, whether you have ever worked in the United States without authorization is irrelevant as well. And there is also
unlawful Entry – unless you are grandfathered under 245i, you cannot adjust status. See the Provisional unlawful presence section as it may apply to you.
In addition, arrests – certain arrests may make you inadmissible. Call us for a consultation to evaluation. And there are also,
orders of Removal – you may be eligible to a waiver but it would be best to schedule a consultation to evaluate.
Another inadmissibility is Fraud – there is a waiver for intentional misrepresentation.
For preference categories to adjust status you need to have Legal Entry and current lawful status and no unauthorized stay.
So, the only exception to all the requirements above is if you are grandfathered under Section 245(i).