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Eligibility for Adjustment of Status

Given the choice, many foreign nationals who are physically present in the United States choose adjustment of status over consular processing in becoming lawful permanent residents. Adjustment of status offers advantages over consular processing, including eligibility for employment authorization and permission to travel while the adjustment application is pending.

There are several ways to adjust status to permanent residence. Most common is the adjustment of status in Section 245(a) of the Immigration and Nationality Act (INA). To be eligible, the applicant must meet certain requirements at the time of filing. First, the applicant must have been inspected, admitted or paroled into the U.S.

Second, the applicant must also be admissible, that is, not subject to any of the inadmissibility grounds, including health-related grounds, public charge grounds, undocumented entry and immigration status violations, and previous removal or unlawful presence.

There must also be an immediately available immigrant visa for the applicant. Unless he/she is an immediate relative (spouse, parent or unmarried child under 21 of a U.S. citizen), the applicant must have an available visa based on his/her priority date and preference category, as indicated in the visa bulletins released by the Department of State every month.

Certain persons are barred from adjusting status. These include alien crewmen, visa waiver entrants except for immediate relatives, and employment-based immigrant visa applicants who are not in lawful status.

Section 245(k) allows employment-based adjustment applicants who are present in the U.S. pursuant to a lawful admission but who have incurred unlawful status (i.e., engaged in unauthorized employment, fell “out of status”, or otherwise violated the terms of their stay) to adjust status if the total period of their unlawful status is not more than 180 days.

If there is a ground for ineligibility under Sec. 245(c) or if the applicant entered the U.S. without inspection, he may still adjust status if he can benefit from Sec. 245(i). This means that he must be the beneficiary of an approvable immigrant visa petition or labor certification application filed on or before April 30, 2001. If it was filed after January 14, 1998 but on or before April 30, 2001, the foreign national must have been physically present in the U.S. on December 21, 2000.

There are, however, ineligible aliens or those who many not adjust status in any case. For example, one who is admitted to the U.S. as a fiancé(e) (K-1 status) may adjust status only through marriage to the K visa petitioner, and the marriage must take place within 90 days of the fiancé(e)’s entry to the U.S.

Another provision of the INA that allows a path to permanent residence is through the registry provision of the INA. This is available to those who entered the U.S. illegally or are present in the U.S. without lawful status. The applicant must have entered the U.S. before January 1, 1972 and continuously resided here since that time. He also must be of good moral character and not ineligible for citizenship, except for the five-year permanent residence requirement, and not subject to inadmissibility for terrorism, criminal and security grounds, or for alien smuggling.

An adjustment application is usually made to the USCIS but if the applicant is under removal proceedings, the application is made before the immigration judge. Adjustment is a discretionary benefit so even if the applicant meets the eligibility requirements, it may be denied if the USCIS or the immigration judge determines that the applicant does not deserve a favorable exercise of discretion.

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