Immigration 101: Adjustment of Status

If you believe you are eligible to become a lawful permanent resident of the US, you may be able to apply for adjustment of status. Even if you are currently in removal proceedings, adjustment of status may be available as a form of relief from removal. Determining whether you are eligible to adjust status is very complicated: There are many different forms of adjustment, and each have their own eligibility provisions, bars to eligibility, and exceptions to those bars. You may be eligible for some form of adjustment of status and not even know it, which is why it’s critical to consult with an experienced immigration attorney during the early stages of your removal proceedings to determine whether you should apply.

In general, eligibility for adjustment of status depends on three important factors: Whether you entered the US lawfully, whether you maintained that lawful status, and whether you’re seeking permanent resident status through an immediate relative.

If you entered the US lawfully, and you have maintained your lawful status since that entry, you must meet the following requirements:

  1. You must submit an application for adjustment of status.
  2. You must be eligible to receive an immigrant visa.
  3. An immigrant visa must be immediately available to you at the time you file your adjustment application. If the person filing the petition on your behalf is an immediate family member (meaning a spouse, a parent, or a child who is at least 21 years old), a visa will be immediately available once the visa petition is approved. If you’re seeking to adjust through one of the other family-based categories, or through an employment category, your petition must have a current “priority date.” You can find priority dates for the different categories here. Unfortunately, the wait time for some visa categories can be as long as 20 years or more. If your visa petition was filed after the current priority date for your category, you may still be able to convince an immigration judge to temporarily pause your removal proceedings while you wait for your priority date to become current. Once it does, your removal proceedings will resume, and you’ll be able to apply for adjustment.
  4. You are admissible to the United States for permanent residence. For people who have been found deportable during their removal proceedings, it can be difficult to satisfy this requirement, since deportability usually – but not always – equals inadmissibility. You may be able to obtain a waiver of the inadmissibility ground, which would allow your application to move forward.
  5. There may be additional rules and requirements that apply to you, depending on the kind of visa you used to enter the US. If you entered under the visa waiver program, or on a J, K, or S visa (for students, fiancées, and criminal informants, respectively), you can expect to have to meet additional requirements.

If you lawfully entered the US, but you haven’t maintained lawful status since your entry, you must show that:

  1. You satisfy all the requirements listed above; and
  2. You are eligible to adjust status because of your relationship with an immediate relative who is a US citizen (i.e. a spouse, parent, or child who is more than 21 years old).

If you entered the US unlawfully, the only way to obtain adjustment of status is through an older provision of the immigration code often simply called 245(i). This law was passed many years ago, and was only meant to apply for a limited time, so very few people will qualify for relief under 245(i). You may be eligible if:

  1. You are the beneficiary of a labor certification application or visa petition that was filed before April 30, 2001.
  2. You are eligible to receive an immigrant visa;
  3. An immigrant visa is immediately available to you;
  4. You are admissible to the US for permanent residence.

This article is part of our ongoing “Immigration 101” series, in which we break down topics in US immigration law. For more articles in this series, click here.

The content in this post was originally written by Stuart Nickum and adapted by Lena Barouh.


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