A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Thursday, December 19, 2019

Apply for your Green Card through Adjustment of Status

As an immigration attorney, I sometimes get this question: "I want to use 'adjustment of status' to apply for a green card. Can you help me?"  They somehow think that adjustment of status is a way to get a green card.  The truth is that adjustment of status is not a basis to get a green card; it is a legal process through which one may become a lawful permanent resident of the United States. 

The Immigration and Nationality Act (INA) permits the "adjustment" of an individual's immigration status while in the United States from one legal status to permanent resident status if the individual was inspected and admitted or paroled into the United States and is able to meet all other requirements for a green card in a particular category. To apply for adjustment of status in the United States, one must file the Form I-485 application.  

For individuals who are outside of the United States, consular processing is an alternate process to apply for a green card.  These applicants would be issued an immigrant visa abroad by an American consulate and enter the United States as a permanent resident.  Applicants who are present in the United States but are ineligible for adjustment (e.g., because of illegal status) generally must still use consular processing. 

Are you Eligible to Apply for a Green Card through Adjustment
For most foreigners, to apply for a green card, they must have a qualified family or employment relationship in the United States.  For example, a U.S. citizen may sponsor her parents, spouse, children and brothers/sisters to immigrate to the U.S.  An employer may also sponsor a foreign worker through the labor certification process. There are other special classes of immigrants including foreigners with extraordinary ability, refugees, asylees, investors, diversity visa applicants, etc. 


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Submit a Visa Petition Based on your Visa Category
If you have a valid basis to apply for adjustment, you may submit an immigrant visa petition with the U.S. Department of Homeland Security.  For examples, if your sponsor is a family member, you should submit the Form I-130 petition; if you are applying based on an employment visa category, you should submit the Form I-140 petition.  Other visa petitions include the I-360 (for special immigrants) and I-526 (for investors.) 

Are you Subject to the Visa Quota?
Even if your visa petition has been approved, you cannot just apply for a green card through adjustment of status. Congress has set limits on the number of immigrants who may enter the United States every year. Gradually, as the number of applicants increase, "lines" are formed in each visa category.  You need to check the monthly Visa Bulletin to see if there are visa numbers available for your visa category based on your priority date.  The current immigration policy only allows the filing of the I-485 application if the applicant's priority date is current.  Petitions filed by immediate relatives are not subject to the visa quota.

Filing of the I-485 Adjustment Application
Preparing an adequate I-485 application is a rather complex process.  The number of pages of the I-485 form has increased from 4 pages in 2005 to 18 pages in 2019.  Both the legal requirements and adjudication process have been greatly tightened. The applicant must answer questions regarding her immigration background, employment history, previous addresses, family members, memberships, finances, etc. There are also questions regarding the applicant's criminal history, political affiliations, and other eligibility questions.  Incorrect or incomplete answers could result in delays or even denials of the application.  Applicants must also undergo a medical examination, provide passport photos, and obtain financial sponsorship to prove that they will not become public charges.

Attend a Biometrics Appointment and Respond to any Requests for Evidence
Assuming your I-485 application has been properly prepared and submitted, the next step is to attend a biometrics appointment at one of the many Application Support Centers (ASC) of the USCIS. The purpose of this appointment is to confirm your identity and also capture your biometrics information (such as your fingerprints and your photos).  Your I-485 will not be reviewed during this appointment and an immigration lawyer is normally not required.  If further information and documents are required, you will also receive a formal Request for Evidence from the USCIS.  You must carefully respond to any RFE issued by the USCIS before the deadline.

Get ready for the Final Step: Green Card Interview
If everything goes well, you should expect to receive a notice for your adjustment or green card interview.  This should be the final and most important step of the process.  You will have to take an oath to promise to tell the truth about your case.   An immigration officer will ask questions about your immigration background, family information, basis for immigration, previous violations, employment history, tax information, political affiliations, etc.   Your sponsor may also have to attend this interview. If you have any concerns about your case, you have the right to have a qualified immigration attorney represent you during the examination process.

Decision
If everything goes well, then you should be granted your green card shortly after your interview. If your application is denied, you do not have the right to appeal although you may file a motion with the government to reopen or reconsider.  Adjustment of status is a discretionary application: it means that it can still be denied even though one meets all the basic requirements.  If you are lucky enough to have been granted a green card, you still need to maintain your permanent residence status by obeying immigration regulations. 

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