Adjustment of Status (AOS) is the process used by a foreign national who is physically present in the United States to become a lawful permanent resident (LPR). AOS is an alternative to obtaining an immigrant visa at a U.S. consulate abroad, a process known as “consular processing” (CP). Depending on processing times at U.S. Citizenship and Immigration Services (USCIS) service centers, AOS may be preferred by foreign nationals over CP because: (1) it avoids the expense and inconvenience of travel to the home country; (2) AOS applicants, including dependent family members, are entitled to employment authorization and permission to travel while the AOS application is pending; (3) employment-based AOS applicants receive job mobility (i.e., “portability”) benefits provided under recent legislation; and (4) there are more options for reconsideration of an unfavorable decision on an AOS case by the USCIS.
AOS, if used, is the final step in the immigration process. AOS is considered to be a discretionary benefit. Although the applicant is statutorily eligible, USCIS may deny the application based upon a determination that discretion need not be favorably exercised.
REQUIREMENTS TO FILE AOS:
• The applicant must be physically present in the United States at the time the AOS application is submitted.
• The applicant, in most cases, must have been admitted or paroled to the United States following inspection by an immigration officer. Proof of admission is usually an I-94 card or an electronic I-94 available on the CBP website. Exceptions to this rule include certain special immigrants, who are considered to be paroled for the purposes of applying for AOS despite the manner of actual entry, and persons qualifying for AOS pursuant to Immigration & Nationality Act (INA) §245(i).
• Following lawful entry, the applicant also must have maintained his or her nonimmigrant status to be eligible to apply for AOS. Except for immediate relatives of U.S. citizens, special immigrants, and certain applicants protected by the provisions at INA, unauthorized work or other failure to maintain lawful status – such as overstaying the period of admission – will result in ineligibility for AOS. In most cases, departure from the United States will not “cure” prior violations of status or unauthorized employment.
Therefore, the applicant’s complete history must be examined to determine if the AOS application may be able to be made.
• The applicant must be eligible to receive an immigrant visa and the immigrant visa must be immediately available for him or her in order to apply for AOS.
• The applicant must be admissible to the United States.
• In the case of immediate relatives of U.S. citizens, the Petition for Alien Relative (Form I-130) and the AOS application may be made simultaneously by direct mail to USCIS National Benefits Center (NBC) for initial processing, then adjudication by the governing USCIS District Office. Additionally, concerning employment-based LPR applicants, as of July 31, 2002, the Petition for Immigrant Worker (Form I-140) and the AOS application may be filed concurrently at USCIS’s service center if an immigrant visa is immediately available (not subject to a priority data backlog).
AVAILABILITY OF IMMIGRANT VISAS:
Whether an immigrant visa is immediately available is determined with reference to the classification in which the applicant is attempting to immigrate. With the major exception of immediate relatives of U.S. citizens (who are subject to no numerical limitations), immigrant categories are assigned a limited number of visas each year. Moreover, the number of visas available in each category is allocated on a per-country basis. The result of this allocation system is that, for some categories in which the demand for immigrant visas outstrips the supply, a waiting line is formed. The waiting line is often referred to as a “backlog”.
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