Adjustment of status is the process of applying for an immigrant visa, commonly known as a green card, while living in the U.S. An undocumented immigrant is someone living or working in the U.S. who either entered illegally or, after entering legally, overstayed his or her period of admission and is now out of status. Undocumented immigrants have two ways to apply for permanent residency in the U.S. and avoid having to return to their country of birth or citizenship.
Immigration law allows immediate relatives of a U.S. citizen to apply for an adjustment of status regardless of the fact that they are in the country illegally or have worked in the U.S. without authorization as long as the person can prove he or she entered legally. Immediate relatives are the spouse, unmarried children under 21 years old, and parents of U.S. citizens. (The citizen must be at least 21 years old.)
For people who entered legally but failed to maintain legal status yet are not immediate relatives, and for people who entered illegally, a possibility exists of applying for an adjustment of status. Section 245(i) of the Immigration and Nationality Act allows such a person to adjust his or her status to permanent resident if he or she meets certain qualifications and pays a penalty.
A visa petition or labor certification must have been filed on the person’s behalf on or before April 30, 2001. If the visa petition or labor certification was filed between Jan. 15, 1998, and April 30, 2001, the applicant must prove that he or she was physically present in the U.S. on Dec. 21, 2000. If the visa petition or labor certification was filed before Jan. 15, 1998, the applicant does not have to prove that he or she was in the U.S. on any particular date.
The person does not have to be seeking an immigrant visa through the petition or labor certification filed before April 30, 2001. That petition or certification can be used as the means to qualify for an adjustment of status under 245(i) while obtaining an immigrant visa through a petition filed many years later, for example, by a recently acquired U.S.-citizen spouse.
If someone filed a visa petition or a labor certification for the person before April 30, 2001, be sure to consult with a competent attorney to determine whether 245(i) applies.
Meeting the requirements to apply for adjustment of status is only part of the process. The applicant still needs to qualify for permanent residency. Immigration law identifies several circumstances that may bar a person from obtaining permanent residency, including a person’s criminal, immigration and medical history. It is important for a person to consult with an attorney experienced in immigration law before applying for any immigration benefit, including an adjustment of status. The consequences of applying for a visa for which you don’t qualify for could be severe, including deportation.
If someone does not qualify for an adjustment of status in the U.S., circumstances exist that allow the person to apply for an immigrant visa through a U.S. Consulate abroad.
Last update: Sept. 24, 2008
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