by Brandon Gillin, Genesis Immigration Lawyer
Adjustment of Status is a means by which an eligible person may obtain lawful permanent residency without having to apply for an immigrant visa from a U.S. embassy or consulate abroad.
WHAT ARE THE BENEFITS OF APPLYING FOR ADJUSTMENT OF STATUS?
Aside from the obvious benefit that an application for AOS can lead to the issuance of a green card, there are five other primary benefits to applying for AOS as opposed to applying for an immigrant visa at a U.S. embassy or consulate abroad.
First, the waiting time (in terms of processing) is usually shorter for AOS than it is for consular processing. The sooner you can get your green card, the sooner you can get on with your life.
Second, because you may apply from the U.S. you can save on travel costs. This is especially true if you are already in the U.S. on a temporary nonimmigrant visa and are eligible to apply for AOS.
Third, you may concurrently apply for an Employment Authorization Document (“EAD”), which will allow you to legally work in the U.S. while your AOS application is pending. Usually the EAD arrives in the mail about half-way through the total processing time of your AOS application.
Fourth, you may concurrently apply for an Advance Parole (“AP”) document, which will allow you to travel internationally while your AOS application is pending.
Fifth, the AOS interview is usually less stressful than an immigrant visa interview at a U.S. embassy or consulate abroad. Part of the difference in stress is that your Genesis Law Firm immigration attorney will be present with you at the AOS interview in Seattle and will prepare you for it; it is usually cost-prohibitive for us to attend immigrant visa interviews abroad, and often attorneys are not welcome at Consular interviews.
WHAT ARE THE ELIGIBILITY REQUIREMENTS?
Eligibility requirements include, for example, having a visa number immediately available to the applicant. The applicant also must have been inspected and admitted or “paroled” upon entering the U.S. and must not have performed unauthorized employment in the U.S.
An AOS applicant must overcome three general hurdles to be successful: (1) be eligible; (2) have no grounds of inadmissibility (“bars”); and (3) satisfy the USCIS adjudicator’s discretion.
Eligibility Requirements
- Physical presence in the United States;
- Immigrant petition (I-130 or I-140) must have been approved;
- Must not have entered the United States illegally;
- No disqualifying changes in circumstances;
Grounds of Inadmissibility (list not exhaustive)
- No unauthorized employment;
- No former J-visa exchange visitors who have not complied with the two-year home residency requirement;
- Not a public charge;
- Not in removal proceedings and marrying solely to apply for AOS;
- Not in the U.S. under the Visa Waiver Program;
- Not a crewmember with a D-visa;
- Not in transit without a visa;
- No disqualifying health issues;
- No disqualifying criminal history;
- No charge of material misrepresentation.
USCIS Discretion
A grant of AOS is discretionary, and may still be denied by USCIS even if the applicant is eligible and lacks any grounds of inadmissibility. If the applicant has negative discretionary factors, such as 1,000 speeding tickets in one year, USCIS may deny the application.
WHAT DOCUMENTS ARE REQUIRED?
An application for AOS may seem straightforward, but it is not. Complicated issues often arise, and applicants are often denied and sometimes put into removal proceedings if the application is not handled with care.
Every AOS application is different, and each applicant’s required documentation will be different. In general, however, every application must include, at a bare minimum, the following:
- Form I-485, completed and signed;
- Two recent identical passport-style photos;
- Medical examination report on Form I-693 by Designated Civil Surgeon;
- Evidence of financial support;
- Copy of approved immigrant petition;
- Copy of passport and visas;
- Copy of Form I-94;
- Copy of certain notices from USCIS;
- Marriage certificate or birth certificate (if applicable);
- Appropriate filing fees;
- If the immigrant petition was based on a marriage to a U.S. citizen or Lawful Permanent Residence, a number of other documents showing the bona fides of the relationship are required.
WHAT IS 245(i) RELIEF?
There are also certain laws and USCIS policies that allow certain individuals to apply for AOS that are so obscure and little-known that individuals are not aware they are eligible. One such law is known as “245(i)” relief, and it allows certain Form I-130 beneficiaries to apply for AOS even though their family- or employment-based petition is many years old.
Section 245(i) of the Immigration and Nationality Act (“INA”) allows certain individuals who entered the United States illegally or who overstayed their visas or who worked without authorization to apply for AOS in the United States without leaving.
In order to be eligible for this benefit under 245(i), the individual (or his/her parent while s/he was a minor) must have had a relative or an employer file the immigrant petition (or labor certificate) on his/her behalf on or before April 30, 2001. If the immigrant petition was filed between January 15, 1998 and April 30, 2001, the applicant must be able to prove that s/he was physically present (not “legally” present) in the U.S. on December 21, 2000.
Note that if an individual has been removed from the United States, s/he may not be eligible for 245(i) relief, even if an immediate relative petition was timely filed. However, as of July 22, 2014, a settlement was reached in a class action lawsuit allowing certain individuals 245(i) relief even if they were previously removed. The settlement benefits individuals who submitted adjustment of status and I-212 waiver applications on or after August 13, 2004 and on or before November 30, 2007. This settlement came in the wake of Duran-Gonzalez v. DHS, which was a Ninth Circuit class action challenging DHS’ refusal to follow Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). In Perez-Gonzalez, the court ruled that individuals who were previously removed could benefit from 245(i) relief by filing adjustment of status applications along with I-212 waivers. But three years later in Duran-Gonzalez v. DHS, 508 F.3d 1227 (9th Cir. 2007), the court overturned Perez-Gonzalez and sided with the BIA’s decision in Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006), which held that individuals who had previously been removed are not eligible to apply for adjustment of status. The court, however, left open that certain individuals may be able to establish that the new rule should not apply to them. This window the court left open paved the way for the settlement.
If you believe you may qualify for 245(i) benefits, contact an immigration lawyer at Genesis Law Firm.
COMMON ISSUES WITH ADJUSTMENT OF STATUS
Sometimes seemingly simple issues arise and may disqualify an applicant or delay the approval of an AOS application. For example, sometimes USCIS will delay the adjudication of an application for AOS or Naturalization. When this happens, it may be necessary to file a Writ of Mandamus in order to compel USCIS (a federal sub-agency) to comply with the law. What do I need to know about Writs of Mandamus? Other examples include when applicants who are in the U.S. on the Visa Waiver Program are denied, or when an applicant inadvertently abandons the AOS application and is forced to refile and pay additional filing fees, or when certain information is not known and an AOS applicant guesses wrongly and becomes subject to denial or a ground of inadmissibility.
HOW DOES AOS ABANDONMENT OCCUR?
Certain actions (or inactions) taken subsequent to an application for AOS may result in its inadvertent abandonment. Such actions include: (1) traveling outside the U.S. without Advance Parole; (2) failure to respond to requests for additional evidence from USCIS; (3) failure to appear to Biometrics appointments; and (4) failure to appear at AOS interviews.
Because USCIS is not your legal advisor, it will not give you legal advice. Many times individuals who have applied for AOS without the assistance of an experienced immigration lawyer will inadvertently trigger abandonment of their AOS application, which in turn results in a denial. A denial does not necessarily prejudice the applicant from re-applying, but any subsequent applications require payment of an additional filing fee and a lengthy processing time.
Do not make the mistake of abandoning your AOS application. Instead, speak to a local immigration attorney. As the saying goes, “do it once, and do it right.”
CONCLUSION
Seeking out the help of an experienced immigration lawyer may be the only way to ensure that an AOS application is done properly, and could be the only way to find out if you are eligible for AOS. The immigration lawyers at Genesis Law Firm are experienced in issue-spotting and helping individuals obtain lawful permanent residence through AOS. In helping you with your AOS application, Genesis Law Firm will determine if you are eligible and if there are any special laws or USCIS policies that benefit you. We will also do a complete review of your case and spot any legal issues that may complicate your case, then advise you accordingly. We handle all the legal paperwork related to your AOS application, and will attend the AOS interview with you. In addition to applying for AOS, you may also be able to apply for an Employment Authorization Document (“EAD”) and Advance Parole (“AP”) card at the same time. Usually your EAD/AP card is one and the same, and it allows you to work in the U.S. and travel internationally while your AOS application is pending. You may find out if your AOS application was approved at the day of the interview; if not, you will usually find out a few weeks after your interview.
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