Eligibility to File an Adjustment of Status (AOS) - The Anwari Law Firm, PC (2024)

Who is Eligible to file an Adjustment of Status (AOS)?

An Adjustment of Status is an application filed by an alien who is physically in the United States and who wants to change his or her non-immigrant status to immigrant or permanent resident status. To file for adjustment of status, the immigrant must not only be eligible to adjust, but must also not have any bars from applying for adjustment.

To be eligible for adjustment of status, an alien must meet the following criteria:

1. The alien must be physically present in the United States. If the alien does not reside in the United States, he/she cannot adjust status in the U.S. and must go through immigrant visa processing at a U.S. consulate abroad instead.
2. The alien’s immigration petition must have been approved. This criterion is only applicable to those who file a family-based immigration petition (Form I-130). However, an alien who is the immediate relative of a U.S. citizen may file an adjustment of status application along with the immigration petition (Form I-130) filed by the U.S. citizen on his or her behalf.In addition to this, an I-485 adjustment of status application can be filed concurrently with an I-140 employment-based immigration petition (EB-1 and EB-2), if visa numbers are available.
3. Petitions are subject to the numerical annual quota for immigrant visas. For these aliens, they may only file their adjustment of status applications once the cut-off dates published monthly by the State Department pass the priority dates of their initial immigration petition or the immigrant visa number for the category is current.
4. The alien must not have entered the United States illegally. Aliens must have been inspected and lawfully admitted into the U.S. The USCIS considers that you have been “inspected” when you present yourself to an immigration officer at a U.S. port of entry. You are considered admitted when an officer informs you of such and you are allowed to enter the U.S. As a rule, your I-94 and/or the Immigration and Naturalization Stamp in your passport is an indication that you have been admitted legally.
5. No change in circ*mstances. A change in circ*mstances could detrimentally alter an alien’s eligibility for adjustment of status.
   • Family-Based Situations and Examples:
     • A U.S. citizen mother petitions for her unmarried 20 year old son, an immediate relative not subject to visa quotas. However, before the adjustment application is approved, the mother unfortunately dies, and the son is thereby no longer qualified as an immediate relative of a U.S. citizen.
     • An elderly legal permanent resident father petitions for his alien child, but before the adjustment is approved, the father dies. The child no longer qualifies for adjustment.
     • A legal permanent resident father files a family immigration petition for his 19-year-old alien daughter. The family visa petition had been approved, but while the adjustment was still pending, she gets married. In this situation, the daughter no longer qualifies for adjustment because she is no longer the unmarried child of a legal permanent resident.
   • Marriage-Based Situations and Examples:
     • The U.S. citizen wife petitions for her alien husband as an immediate relative. However, before the adjustment is approved, they divorce. The petition will be denied and he will not be able to adjust his status.
     • The U.S. citizen wife petitions for her alien husband as an immediate relative. However, before the adjustment is approved, they legally separate. The petition may still be approved, but the USCIS will consider the separation as a factor when they determine whether or not the marriage is valid and not merely a “sham” marriage.
     • A U.S. citizen marries an alien wife. However, before he can file an immigration petition for his wife, he dies. The alien wife can still qualify as an immediate relative for adjustment of status if she and her deceased citizen husband have been married for at least two years and they were not legally separated at the time of her husband’s death. However, she will have to file an immediate relative visa petition within two years after the date of death and must still be unmarried at the time.
   • Employment-based Examples:
     • An outstanding researcher petition for permanent residence under EB-1 (b) status, but before the petition was approved, his employer withdrew his research position offer. His petition will be rejected by the USCIS because a job offer is required for an EB-1(b).
     • An alien is granted a National Interest Waiver and later applies for adjustment of status. However, after being granted the National Interest Waiver, the alien decides she no longer wants to work in her previous research field and decides to take a new job in an unrelated field. The USCIS might deny her adjustment because she is no longer working in her previous research field.
     • If an adjustment is based on an Eb-1 (b), Outstanding Researcher petition, or any employment-based visa petition that requires a Labor Certification, the alien must work for the petitioning employer for 180 days after the I-485 has been filed. Otherwise, the USCIS may deny the adjustment application.

Aliens that meet the above listed criteria are not automatically eligible for adjustment of status. Aliens will not be able to adjust their status in the U.S. if they are statutorily bared from adjustment. Statutory bars to adjustment include:

1. 1. Unauthorized Employment, Unlawful Status or Failure to Maintain Status: Aliens who have engaged in unauthorized employment, or who were not in lawful status at the time of filing the adjustment application, or who have failed to continuously maintain status for even a single day since their entry into the United States are barred from adjustment of status.Exceptions — This rule has several exceptions, which include:
      • Immediate relatives (spouses, parents and unmarried children under 21-years of age) of U.S. citizens are still eligible to adjust their status;
      • Violation of status that is in effect a “technical violation” which is not due to the alien’s own fault. These “technical violations” include an individual or organization’s failure to act on behalf of the alien where such inaction directly contributed to the violation of the alien’s legal status; the USCIS’ failure to act in a timely manner on an application properly filed by the alien; or the alien’s physical disability to request a legal status on a timely basis;
      • Employment-based immigrants who have been out of status no more than 180 days in the U.S. are still eligible to adjust; or
      • The 245(i) exception is available for those that qualify.
   2. Exchange visitors with J visas: J-1 or J-2 non-immigrant status holders are subject to the two-year foreign residence requirement. They will be barred from adjustment if they have not completed their two-year foreign residence requirement or if they have not been granted a waiver of it.
   3. Fiancés with K visas: Aliens who are admitted under the K-1 category for fiancés may only be adjusted to permanent residence on a conditional basis, and only where the adjustment is a result of the K-1’s marriage to the sponsoring U.S. citizen within ninety days of entry into the U.S. In other words, if the alien marries a U.S. citizen other than the one who filed the K-1 petition, the alien is barred from adjustment of status.
   4. Public charge: Aliens who wish to adjust their status must be able to prove that they or some sponsoring individual (such as a spouse) have the financial means of supporting themselves. Therefore, unless an alien can show that he or she will not be a public charge, they are not eligible to adjust their status.
   5. Aliens who are in removal proceedings and marry a U.S. citizen or permanent resident: The default rule in these instances is that if the marriage was not entered into in good faith and as a result, the alien is ineligible for adjustment of status. However, this bar can be overcome if the alien can show that the marriage was entered into in good faith and not for the purpose of obtaining permanent residence by clear and convincing evidence.
   6. Aliens who entered under visa waivers: Aliens who are tourists or business visitors admitted in the Visa Waiver Pilot Program under section 217 of the Immigration and Nationality Act, or under the Guam Visa Waiver Pilot Program under section 212(1) of the Act are barred from adjustment of status. However, this bar does not apply to persons seeking adjustments as spouses or unmarried minor children or parents of U.S. citizens. Additionally, the 245(i) exception is also available for those that qualify.
   7. Crewmembers with D visas: Foreign national crewmen and crewwomen who were serving on board a vessel or aircraft at the time of their arrival are barred from adjustment of status. However, the 245(i) exception is available for those that qualify.
   8. Transits without a visa: Aliens in transit without a visa, traveling through the U.S. to another country, are barred from adjustment of status. However, the 245(i) exception is available for those that qualify.

Adjustment of status is discretionary (not mandatory). It is important to note that adjustment of status is up to the discretion of the USCIS officer handling each case. Even if an alien is eligible for adjustment and is not blocked by any of the statutory bars listed above, the USCIS may still deny an application for adjustment of status. In practice, adjustment of status will be granted where the alien is statutorily eligible and there are no “Negative Factors.” When such negative factors exist, the factors will be weighed to determine whether adjustment will be granted. Close family relatives and immediate relatives in the U.S., may be a strong factor favoring adjustment. The preconceived intent to remain in the U.S. at the time of entry as a non-immigrant, even if this intent does not constitute fraud or willful misrepresentation, may be a sufficient negative factor to deny an adjustment of status application. However, immediate relatives of U.S. citizens can generally overcome such negative factors.