ADJUSTMENT OF STATUS .

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INTRODUCTION.

Adjustment of status  generally refers to the procedure for seeking Legal Permanent Resident status in the United States without having to leave the country.

Most applications for permanent residence status are filed under provisions of law which involve the exercise of discretion. 

Generally, adjustment of status requires an approved visa petition through a U.S. citizen or lawful Permanent resident family member, an employer, or a diversity visa  lottery. There also are requirements regarding manner of entry into the country, visa availability, and admissibility. The adjustment of status procedure is found at section 245 of the Immigration and Nationality Act (INA) and at Title  8 Code of Federal Regulation.
First the  "Regular" adjustment of status under INA §245(a) will be discussed ,followed by other means by which one may adjust status outside of §245(a) of INA, including §245(i), which provides an exception so that adjustment of status is available to illegal entrants and those in unlawful status who have filed an application for an immigrant visa or labor certification on or before April 30, 2001, regardless of whether the petition was approved, denied, or still is pending.

ADJUSTMENT OF STATUS--REQUIREMENTS UNDER INA §245(a) 

The statutory and regulatory requirements are outlined below.

PHYSICAL PRESENCE.

An individual must be physically present in the United States in order to apply for adjustment of status.

INSPECTION AND ADMISSION.

The statute requires that an applicant must Have Been Inspected and Either Admitted to or Paroled into the U.S.  Admission means the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.

An inspection occurs when the alien physically presents him- or herself for questioning . Any type of admission, whether as a non immigrant, , or as a refugee, can meet the “inspected and admitted” requirement,  Likewise, any type of parole under section 212(d)(5) of the Act, whether for urgent humanitarian reasons, for significant public benefit, or for a deferred inspection, meets the “paroled into the United States” requirement.

However the regulation classifies parolees as arriving alien. If someone was neither inspected and admitted, nor inspected and paroled, he or she cannot adjust status  unless he or she is eligible for the provisions of section 245(i) of the Act, or the Violence Against Women Act (VAWA).

APPLICATION .

This is done on Form I-485,  The application must be accompanied by the correct fee as required in the regulation or a fee waiver request  .

MAINTAINING LAWFUL STATUS.

The regulations require, in addition to inspection and admission, or parole, that an applicant for adjustment of status maintain lawful status in the United States. This includes not having  engaged in unlawful and unauthorized employment  There are exceptions to this requirement; Some applicant including immediate relative of U.S. citizens and Applicants under section 245(i) of the Act need not have maintained continuous lawful status in the United States in order to adjust status: 

AVAILABILITY OF VISAS.

In order to adjust status under INA §245(a), there must be a visa number immediately available. Thus, the beneficiary of the visa petition must have a current priority date."The priority date is the date on which the family visa petition is filed with United States Citizenship and Immigration Services, or the labor certification is filed with the Department of Labor (DOL) .

The priority date is important because it is the date on which the alien gets in the waiting line for his or her visa number. The waiting line is caused by a quota for all family- and employment-based categories, except for immediate relatives who have no quota or waiting time for approval. There are quotas on all the preferences, and, hence a backlogs which is caused as a result of the fact that there are many (preferences Categories) applicants than available visas.

 Visa applicants with an approved petition  May choose  consular processing if outside the US or adjust to permanent resident status if  in the United States, if s/ he  meets the other statutory requirements and discretion is merited in his or her favor.   The  availability of  visa numbers  monitored monthly through the U.S. State Department’s Visa Bulletin.

BE ADMISSIBLE TO THE U.S. 

Being granted adjustment of status is the same as being admitted to the U.S. for permanent residence... An alien who is not admissible, but is eligible for a waiver of that inadmissibility may apply for such waiver, except that an alien (J-1)who is subject to the 2-year foreign residency requirement must  obtain such waiver before filing for adjustment of status. 

The grounds of inadmissibility are found in Section 212(a) of the Immigration and Nationality Act. 
The main grounds of inadmissibility fall into health-related grounds ; crime; security; public charge; and immigration violations. In an adjustment of status application, the health-related grounds of inadmissibility are examined through the required medical examination, which evaluates an individual for communicable diseases and required vaccinations. 

INELIGIBLE ALIENS.

The following individuals are listed as ineligible for adjustment of status in the United States: 

(A) Citizens of the U.S .

Occasionally, a citizen of the U.S. will want to become a permanent resident in order to renounce citizenship, to protest a particular political issue, to seek a (perceived) benefit not otherwise available, or for some other reason. Regardless of the reason, a citizen cannot apply for, adjustment of status from citizen to Lawful Permanent Resident. ( Note: When a naturalized citizen is denaturalized, he or she reverts to the status held prior to the naturalization, which is usually that of lawful permanent resident. However, this process is not an adjustment to Lawful Permanent Resident , it is instead a loss of the naturalization.) 

(B) Lawful Permanent Residents of the U.S .

 Occasionally, someone who had previously been granted Lawful Permanent Resident  status may wish to “re-adjust” on some other basis. Before an Lawful Permanent Resident  can apply for and be granted adjustment of status, he or she would first have to lose Lawful Permanent Resident  status, which can only occur through abandonment upon departure, through rescission  or through an order of removal in Immigration Court

An alien who has reentered the U.S. illegally after having been removed (including “deported” and “excluded and deported”), or after having departed voluntarily while under an order of removal (a “self-deport”) is ineligible for any relief under the Immigration and Nationality Act. Such relief includes adjustment of status under section 209 or 245 of the Act, and registry under section 249 of the Act. 

(D) Aliens Ordered Removed:

An alien who is ordered removed in absentia after failing to appear for a removal proceeding is ineligible for adjustment of status under section 245 of the Act or registry under section 249 of the Act for a specified period from the date of the final order. 

(E) Exchange visitor

(J-1)subject to the two-year foreign residency requirement who has not obtained a waiver ; 

(F) Aliens without current pirority date:

Immediate relative or preference immigrant without an approved visa petition; 

 (H) Fiance(e) with a K-1 visa applying to adjust status through someone other than the original fiance(e), 

 (I)U.S citizen spouse  with a K-3 visa who seeks to adjust status based on a marriage to someone other than the U.S. citizen who filed the original K-3 visa petition; 

 (J)Alien admitted on an S (witness) visa applying to adjust status unless through the request of a law enforcement agency; 

(K) Alien seeking to adjust status based on a marriage that occurred on or after November 10, 1986, and while the alien was in exclusion or deportation proceedings, unless the alien proves by clear and convincing evidence that the marriage was bona fide and not entered into for the purpose of procuring immigration benefits 

SPECIAL ADJUSTMENT OF STATUS PROVISION. 

In general, section 245(i) of the Immigration and Nationality Act allows an otherwise inadmissible alien who has an immediately available immigrant visa to apply for adjustment of status upon payment of a $1,000 surcharge, even though the alien entered the United States without inspection and is not maintaining a lawful immigration status. An alien adjusting under 245(i) is referred to as a grandfathered  alien.  

The term “grandfathered alien” means an alien who is the beneficiary of a petition (ie  ( I-130, I-140, I-360, or I-526) which was properly filed  on or before April 30, 2001, and which was approvable when filed; OR An application for labor certification (Form ETA 750) that was properly filed and accepted pursuant to the regulations of the Secretary of Labor . 

 The term “properly filed” means: that the application was physically received on or before April 30, 2001, or if mailed, was postmarked on or before April 30, 2001, and accepted for filing . 
 The term “approvable when filed” means that, as of the date of the filing of the qualifying immigrant visa petition or qualifying application for labor certification, the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous ("frivolous" being defined herein as patently without substance). This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed. 

 A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act. 

 An asylum application, diversity visa lottery application, or diversity visa lottery-winning letter does not serve to grandfather an alien for purposes of section 245(i) of the Act. Aliens who are grandfathered on the basis of a visa petition or Labor certification filed after January 14,1998, and on or before April 30, 2001, must demonstrate physical presence in the U.S. on December 21, 2000. Only principal aliens must meet this requirement. Dependent aliens do not need to demonstrate physical presence on December 21, 2000, in order to use section 245(i) of the Act. 

If the alien is not in an authorized period of stay, the fact that he or she is a grandfathered alien does not prevent the alien from accruing unlawful presence .

In summary:

An alien must satisfy the following requirements

(1) The alien was the beneficiary of a qualifying immigrant petition or application for labor certification filed on or before April 30, 2001.

 (2) The qualifying immigrant visa petition or the qualifying application for labor certification was "properly filed" and "approvable when filed."

(3) The principal alien was physically present in the United States on December 21, 2000, if the alien's qualifying immigrant visa petition or application for labor certification was filed between January 15, 1998 and April 30, 2001. 

A grandfathered alien is not limited to seeking adjustment of status solely on the basis of the qualifying immigrant visa petition or application for labor certification that initially grandfathered the alien.

The grandfathered alien may also seek to adjust status on any other proper basis for which the alien is eligible Eg. a later approved I-140 or wins the diversity visa. Until a grandfathered alien adjusts status, there is no limit to the number of applications the grandfathered alien may file for adjustment of status under section 245(i) provided that the alien meets all of the requirements including payment of the $1,000 surcharge for every application filed.

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REQUIREMENTS FOR THE DERIVATIVE SPOUSE OR CHILD OF A GRANDFATHERED ALIEN.

Section 245(i) defines the term "beneficiary" to include a spouse or child eligible to receive a visa under section 203(d) of the Immigration and Nationality Act. Depending on the circumstances, a spouse or child of a grand fathered alien may also be a grand fathered alien or may be eligible to adjust status as a dependent of the principal alien under section 245(i) of the Act. 

SPOUSE OR CHILD RELATIONSHIP EXISTED AT TIME OF FILING OF GRANDFATHERING IMMIGRANT VISA PETITION OR APPLICATION FOR LABOR CERTIFICATION SUBMITTED ON OR BEFORE APRIL 30, 2001.

If an alien demonstrates that a spouse or child relationship existed at the time a qualifying petition or application was properly filed on or before April 30, 2001, a principal alien's spouse or child is a grandfathered alien regardless of any subsequent changes in the relationship with the principal alien. This means that a spouse or child remains grandfathered even after losing the status of spouse or child, such as by divorce or the child becoming 21 years of age. Such spouse or child who is grandfathered may seek to adjust status under Section 245(i) on any other proper basis, if so qualified. - 

SPOUSE OR CHILD RELATIONSHIP ESTABLISHED AFTER APRIL 30, 2001 AND IN EXISTENCE ON THE DATE THE PRINCIPAL ALIEN ADJUSTS STATUS.

If a spouse or child relationship is established after the filing of a grandfathering petition or application and is in existence at the time the principal alien adjusts status, the spouse or child is not a grandfathered alien and may not independently benefit from section 245(i). Rather, the spouse or child may only benefit from section 245(i) as a dependent of the principal alien. Accordingly, the qualifying relationship must continue to exist at the time the principal alien adjusts status in order for the spouse or child to obtain the derivative benefit. 

SPOUSE OR CHILD RELATIONSHIP ESTABLISHED AFTER APRIL 30, 2001 BUT NOT IN EXISTENCE ON THE DATE THE PRINCIPAL ALIEN ADJUST STATUS.

If a spouse or child relationship is established after the filing of a grandfathering petition or application but is not in existence at the time the principal alien adjusts status, the spouse or child is not grandfathered and may not file for adjustment of status under section 245(i) as a dependent of the principal alien pursuant to section 203(d) of the Act. 

This is Because spouse  married grandfathered principal alien  after the April 30, 2001 sunset date, spouse is  not grandfathered   and may not independently benefit from section 245(i) of the Act. In addition, spouse  may not apply for adjustment of status under section 245(i) as a dependent of principal alien  because principal alien and spouse divorced before principal alien adjusted status 

SPOUSE OR CHILD RELATIONSHIP ESTABLISHED AFTER THE PRINCIPAL ALIEN ADJUSTS STATUS.

An alien who becomes the child or spouse of a grandfathered alien after the grandfathered alien acquires lawful permanent resident  status cannot adjust status under section 245(i) of theAct unless the alien has an independent basis for grandfathering.This is because spouse and child relationships did not exist on the date of the filing of the application. Moreover, because the spouse and child relationships were established after the principal alien adjusted status to an Lawful Permanent Resident, spouse  and child are not eligible as "accompanying" or "following-to-join" spouse and child under section 203(d) of the Act.

Adjustment of Status and § 245(k) :Exemptions for Certain Employment-Based (EB)Adjustment Applicants. Aliens described in § 245(k) of the immigration and Nationality Act,can file for adjustment of status under § 245(a) and are exempt from certain bars to adjustment of status.

WHO IS DESCRIBED IN SECTION 245(K)

The alien must be:EB-1: Priority workers;

• EB-2: Professionals with advanced degrees or aliens of exceptional ability;

• EB-3:Skilled workers, professionals, or others;

• EB-4: Religious Workers (only); and

• The spouse and children of eligible aliens. 

 Additionally, the alien must be:

1. Present in the U.S. on the date of filing the application for adjustment of status, pursuant to a lawful admission (not parole), and

2. Have not, subsequent to that admission, violated status in the following manners for an aggregate period of 180 days…

1. Failed to maintain a lawful status continuously,

2. Engaged in unlawful employment; and/or