The Immigration and Nationality Act allows individuals to change their immigration status while they are in the United States. They may have begun as a nonimmigrant or a temporary alien but now wish to be classified as a permanent immigrant.
In order for an individual to be able to adjust status, he or she must have been inspected and legally admitted or paroled into the United States. Additionally, he or she must be able to show that he or she qualifies under all criteria set out for permanent residents.
Difference between Adjustment of Status and Visa Processing
The Immigration and Nationality Act sets out two basic ways for a person to receive status as a permanent resident. The first is petitioning for adjustment of status. This process allows a person to remain in the United States while his or her application is pending.
The other option is for an individual to go through consular processing. This method is usually used by individuals who reside outside the United States or who are ineligible to adjust status though currently living in the United States. If approved, an individual is able to obtain a visa abroad and then enter the United States as a permanent resident.
Basis to Immigrate
Not all individuals are eligible to adjust their status. The first criterion for individuals is that they have a basis for immigration. They must fall within a certain category. Most individuals qualify for adjustment of status through a petition filed on their behalf by a relative or an employer. Other individuals may first obtain refugee or asylum status and then seek adjustment.
Completion of Immigration Petition
The individual who wishes to adjust status must then usually file a petition to make this request. If the individual is basing his or her request on family status, the eligible United States Citizen or Legal Permanent Resident must file Form I-130 on the immigrant’s behalf.
Individuals who are seeking adjustment based on employment must usually have their current or potential United States employer file a Form I-140, Petition for Alien Worker for the immigrant.
Other petitions may be relevant based on the particular circumstance. For example, a Form I-360 may need to be filed for special immigrants or widows. Entrepreneurs who seek to invest significant capital into a business in the United States may need to file a Form I-526.
Filing Concurrently with Form I-485
In some instances, an immigrant may be able to file a Form I-485, Application to Register Permanent Residence or Adjust Status with their immigrant petition. Typically, this option is available for individuals who are the immediate relatives of a USC. Other individuals who have a visa that is immediately available to them may also be able to file both petitions at the same time.
Otherwise, an individual must check visa availability and priority dates with the United States Citizenship and Immigration Services site. A Form I-485 cannot be filed until there is a corresponding available visa.
At the applicable time, the immigrant must file Form I-485 to apply for permanent residence. This application requires a number of attachments, depending on the circumstances. For example, if adjustment is sought due to a marriage, the immigrant must provide proof that there is a valid relationship and all applicable laws have been complied with.
For other relatives, the relationship between the United States Citizen or Legal Permanent Resident must be established by documentary and other evidence. Immigrants who are interested in adjusting their status should thoroughly read over the evidence requirements established by the United States Citizenship and Immigration Services and submit the required evidence, based on the immigrant’s particular category. Individuals who do not provide this evidence may have their case delayed or even denied for failing to establish eligibility.
Immigrants will be notified of the need for them to appear for a biometrics appointment. During this appointment, the immigrant will have his or her picture taken, provide a signature example and be fingerprinted. This information is provided so that immigration officials can perform background and security checks.
Immigrants may be required to attend an interview at a USCIS office. Prior to the interview, the applicant will receive notification of the date, time and location for the interview. During this process, they will be required to answer questions under oath. Additionally, the immigrant must provide original documents as requested by USCIS.