Many people are surprised to learn that obtaining a green card does not always require leaving the United States.
For many people, that is not the case.
Depending on the immigration category and the applicant’s circumstances, it may be possible to apply for permanent residence without leaving the United States through a process known as Adjustment of Status (AOS).
What Is Adjustment of Status?
Adjustment of Status is the process that allows certain eligible individuals who are already physically present in the United States to apply for lawful permanent residence (a green card) without completing the immigrant visa process through a U.S. embassy or consulate overseas.
Rather than leaving the country for consular processing, the applicant files the required forms with U.S. Citizenship and Immigration Services (USCIS), attends biometrics, and, if required, an interview within the United States.
Who May Be Eligible?
Eligibility depends on the specific immigration category and the applicant’s immigration history.
Adjustment of Status is commonly available for individuals pursuing permanent residence through categories such as:
- Marriage to a U.S. citizen (or, in some situations, a lawful permanent resident)
- Employment-based immigrant petitions, including EB-1, EB-2 NIW, EB-5, and other employment-based categories
- Certain family-based immigrant petitions
- Other immigrant classifications that permit adjustment under U.S. immigration law
Simply being present in the United States does not automatically make someone eligible to adjust status. The applicant must independently qualify under the applicable immigration category and satisfy the legal requirements for adjustment.
Is Adjustment of Status Better Than Consular Processing?
Not necessarily.
For many applicants, Adjustment of Status offers important advantages. Because the applicant remains in the United States throughout the process, they may also become eligible to apply for:
- Employment Authorization (EAD), allowing them to work while the green card application is pending; and
- Advance Parole, which may allow certain international travel during the process.
However, Adjustment of Status is not available to everyone. Some applicants may be required, or may choose, to complete immigrant visa processing through a U.S. consulate abroad instead.
The appropriate strategy depends on factors such as immigration status, visa availability, travel history, prior immigration violations, country of chargeability, and the specific immigrant category involved.
Common Misunderstandings
Many people assume that entering the United States on any visa automatically allows them to apply for a green card from within the country.
That is not correct.
Likewise, many believe that marriage to a U.S. citizen automatically guarantees Adjustment of Status eligibility. While marriage may create an immigrant visa pathway, the applicant must still satisfy the legal requirements for adjustment.
Each case requires an individualized legal analysis.
The Importance of Timing
For many applicants, deciding when to file for Adjustment of Status can be just as important as determining whether they qualify.
Visa availability, maintenance of lawful status, travel plans, employment authorization, and long-term immigration goals can all influence the best strategy.
A well-timed filing can help avoid unnecessary delays and provide greater flexibility while the application is pending.
The Importance of Presenting the Full Picture
Recent USCIS guidance has also reinforced the importance of the discretionary component of Adjustment of Status. Meeting the technical eligibility requirements does not necessarily end the analysis. USCIS officers may consider both favorable and unfavorable factors when deciding whether an applicant merits approval as a matter of discretion.
For that reason, a strong Adjustment of Status filing often goes beyond simply establishing legal eligibility. Depending on the circumstances, it may be beneficial to include evidence demonstrating the applicant’s positive equities, such as a history of immigration compliance, stable employment, tax filings, family ties, education, community involvement, professional accomplishments, and other factors that reflect favorable discretion.
Considering Adjustment of Status?
If you are currently in the United States and are exploring your options for permanent residence, Huffman Law Group can help evaluate your immigration history, eligibility, and long-term goals to determine whether Adjustment of Status may be available, and whether it is the right strategy for your situation.
