Adjustment of Status Green CardGenerally, there are two major ways to become a permanent resident of the United States.  Adjustment of Status Green Card occurs when a foreign national who is legally present in the U.S. becomes a permanent resident and is issued a green card.  By contrast, some foreign nationals in the U.S. and many of those living abroad are required to obtain legal permanent residency by visiting a consulate abroad.  These immigrants are issued an immigrant visa and apply for their green card after they enter the U.S. as an immigrant. This is known as Consular Processing.

This article discusses Adjustment of Status Green Card.

Basics of Adjustment of Status Green Card

Before we jump into a deeper discussion of Adjustment of Status, it is important to understand some key terms.  A legal permanent resident is a noncitizen who has been granted permission to live and work in the United States permanently.  Legal permanent residents are issued Permanent Resident Cards, also known as Green Cards, which prove their status.

As noted above, a noncitizen who has been inspected by an immigration officer and legally admitted to the United States (and who continues to maintain legal immigration status) may apply to become a legal permanent resident in the U.S. without having to return to his or her home country.

For example, we frequently represent nonimmigrants who come to the U.S. on K-1 Fiancé Visas.  While these noncitizens are nonimmigrants when they enter the country, provided they marry within 90 days, they can stay in the U.S. while applying for a green card.

Fiancés are not the only ones who may apply for Adjustment of Status Green Card.  Many classes of nonimmigrants are eligible to apply for a green card without leaving the country.  Generally, you may apply for Adjustment of Status Green Card only if each of the following criteria is met:

  • You are eligible to receive an immigrant visa;
  • You are admissible to the United States for permanent residence; and
  • An immigrant visa is immediately available to you at the time of application filing.

Let’s consider each of these criteria individually.

Eligibility to Receive an Immigrant Visa

The first step is to determine if you are eligible to receive an immigrant visa.  An immigrant visa is for anyone wishing to live and work permanently in the U.S. Contrast this to a nonimmigrant visa, which allows individuals to temporarily enter the U.S. for a specific purpose (work, visit, etc.).

Most noncitizens who become permanent residents are eligible to do so because of a petition filed by a family member or by an employer.   Others become eligible because they have been granted asylum or refugee status.  Still others become eligible through special programs or through the diversity lottery.  That said, not everyone who wants an immigrant visa is eligible to receive one.  So, before you may apply for Adjustment of Status, you must be in some category that makes you eligible for an immigrant visa.

Occasionally the immigrant visa petition can be filed simultaneously with the Adjustment of Status application.  Other times, the immigrant visa petition must be approved prior to filing the application for Adjustment of Status.  Which process is appropriate depends on a variety of factors. We can help you understand if you are eligible to receive an immigrant visa.

Admissibility to the United States

The second requirement for Adjustment of Status is that you must be admissible to the United States as an immigrant.  Put another way, you cannot be inadmissible if you wish to be granted legal permanent residency.

There is a long list of factors that might make a noncitizen inadmissible.  In general, those with some diseases, certain criminal offenses, or flawed moral character are not inadmissible and thus ineligible for adjustment of status.  That said, this explanation is overly broad.  We have successfully worked to identify admissibility issues and formulate solutions for our clients.  If you have a criminal record, have ever had immigration issues, have struggled with addiction or mental illness, or have a contagious disease, contact our office to discuss your case prior to filing for adjustment of status.

Immediate Availability of a Visa

It is possible to meet the first two criteria for Adjustment of Status – eligibility and admissibility – but still be unable to file for a green card.  This is because U.S. immigration law limits how many foreign nationals can become permanent residents in any given year.  The numerical limitations vary based on one’s visa eligibility category.  Some immigrants – like spouses of U.S. citizens – always have an available visa.  Others might wait years for a visa to become available.

Each month the federal government publishes a visa bulletin, advising on which visas are available.  If you are in a category that does not have immediate visa availability, it is important to review the visa bulletin carefully each month so as not to miss your filing window.

When Adjustment of Status Green Card Is Prohibited

Earlier we discussed that if you entered the U.S. legally and are in valid immigration status, you can apply for Adjustment of Status (assuming the three criteria above are satisfied).  This is not always the case, however.  If you entered the country as noncitizen airplane or ship crew, were in transit through the U.S., or entered in the visa waiver program, you are barred from applying for adjustment of status.  If you are in one of these groups and want to immigrate to the U.S., you will need to depart the country and apply for an immigrant visa at a consulate abroad.

Let Us Help

This article only scratches the surface of the issues involved with Adjustment of Status.  Please remember that the information provided in this article is for educational purposes only and is not legal advice.  Before taking any action in your immigration case, you should seek the advice of an experienced immigration attorney.