Adjustment of status is the process where a foreign national will adjust his or her status from a non-immigrant to an immigrant. It differs from obtaining an immigrant visa at a U.S. Consulate in that the entire process occurs in the U.S. Although adjustment of status is one of the most complicated areas of U.S. immigration law, one important aspect of that process is easily understood if we follow certain basic rules.
Any foreign national who has an immigrant petition (I-130 or I-140) approved has the right to apply for an immigrant visa at a U.S. Consulate outside the U.S. However, certain individuals are also granted the privilege of applying for an immigrant visa or, more correctly, adjustment of status to immigrant status in the U.S. Since the Immigration Act considers adjustment of status a matter of grace rather than right, every applicant for adjustment of status must meet certain criteria. One of the most important requirements is that generally speaking, the applicant must be legally in the U.S.
§245 (a) of the Immigration Act provides that someone with an approved immigrant petition who has always maintained lawful status in the U.S. may adjust status in the U.S. without the necessity of going home to their country for an interview at the U.S. Consulate. However, there are many situations in which a person may have fallen out of status by mistake, or may have intentionally remained in the United States without status for some reason. It is those individuals with violations of status in the past which complicate the question of eligibility for adjustment.
For employment-based cases, which are essentially those with an approved I-140 petition, adjustment of status is generally available if the beneficiary has always maintained status in the U.S. since the very first entry or has not violated status in any way for more than 180 days since the last entry. The first type of adjustment is called §245(a) and the second is referred to as §245(k). Note that §245(k) is only available for employment-based cases. For example, let’s assume that an H-1 employee who has an approved I-140 petition is now current under the quota and therefore ready to file for adjustment of status. However, the H-1 employee previously was an F-1 student status and had failed to take a full course of study during one semester. Technically, that H-1 employee would have a violation in the past and would not be eligible for a §245(a) adjustment. However, if that H-1 employee had traveled outside the United States for any reason since the F-1 violation, then we would only count violations of status since that last entry. Assuming the H-1 employee had no violation since the last entry of more than 180 days, he or she would be eligible for adjustment under §245(k).
Family-based petitions also have certain exceptions to the rule that the applicant for adjustment must have maintained status at all times. For example, “immediate relatives” are allowed to adjust status even if they have not maintained status in the U.S. as long as they were either legally admitted to the U.S. or paroled during the last entry. Immediate relatives are the spouse, children and parents of U.S. citizens. All other family members who have an approved I-130 petition must have maintained status at all times since the very first entry in order to adjust status in the U.S.
A final note: there is also an exception to the general rule for adjustment referred to as §245(i) but it is increasingly rare to find these cases. Essentially, §245(i) refers to individuals who had any type of immigrant petition filed for them prior to April 30, 2001. In that situation people who are out of status may be able to adjust status in the U.S. if they become the beneficiary of an approved immigrant petition at some point in the future.
As noted previously, adjustment of status is one of the most complicated areas of U.S. immigration law but these very basic general rules may be helpful in determining whether or not a person will be able to complete their permanent residence case in the U.S. or will be forced to complete the case at the U.S. consulate in their home country.