Adjustment of status

Adjustment of status in the Immigration and Nationality Act (INA) of the United States refers to the legal process of conferring permanent residency upon any alien who is a refugee, asylum seeker, nonpermanent resident, conditional entrant,[1] parolee, and so forth.[2][3][4][5]

Filing and Approval Process

Unlike other aliens, those who were admitted to the United States as resettled refugees are not required to file green card applications. The United States Citizenship and Immigration Services (USCIS) routinely prepares their applications, which usually occurs anywhere between one and two years after their lawful entry into the country.[2][6] In all other cases, the alien must actually file an application for adjustment of status or cancellation of removal and wait for the approval, which could take between one year and several years.[5]

In order to apply for permanent residency, the applicant must not be "removable" from the United States.[7] If he or she is the beneficiary of an approved immigrant petition (family or employment-based), the priority date must be current (if applicable). The application (Form I-485) must be accompanied by a sealed envelope from a designated civil surgeon who performed a medical examination on the alien applicant. This envelope must be accompanied by Form I-693.

Once the application package (I-485, I-693, and the filing fees[8]) are received, the applicant will receive the receipt number. This receipt number can be used to track the case online. In most employment-based applications, the petition will be approved within four months and a green card will automatically be mailed. In some cases, a face to face interview is required. This is often done in marriage-based applications to ensure that the marriage is bona fide, meaning genuine and not a sham marriage.

After filing the adjustment of status forms, the application will be considered abandoned if the applicant leaves the United States (a few exceptions apply). This can be mitigated by filing for an advance parole (form I-131) and an Employment Authorization Document (Form I-765). Once the advance parole and Form I-765 are approved, the applicant will receive the Employment Authorization Document which will also serve as advance parole (if endorsed as such).

In exceptional cases when the adjustment of status is approved, but an immigrant visa number is not immediately available, the approval will be postponed indefinitely until such a number is available. This can be the case when the applicable priority date retrogresses during the time of adjudication. In such cases, it is common that the Form I-765 and advance parole are renewed every year.

Public Charge Rule

From February 24, 2020, every applicant for adjustment of status in the United States, except for those who fall under exceptions, will have to submit form I-944, Declaration of Self-Sufficiency. The form calls for information related, among other things, to the applicant's assets and liabilities, health insurance, bankruptcy filings, past Immigration Fee waiver requests, applicant's education and occupational skills and more. The form is based on the Public Charge Rule adopted by the U.S. Department of Homeland Security.[9]

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See also

References and authorities
  1. "Conditional Entrants". hcopub.dhs.state.mn.us. Retrieved 2018-11-19. This was the immigration status used for refugees prior to the Refugee Act of 1980. See also 8 U.S.C. § 1254a ("Temporary protected status").
  2. Matter of Jean, 23 I&N Dec. 373, 381 (A.G. 2002) ("Aliens, like the respondent, who have been admitted (or conditionally admitted) into the United States as refugees can seek an adjustment of status only under INA § 209."); see also Matter of H-N-, 22 I&N Dec. 1039, 1040-45 (BIA 1999) (en banc) (case of a female Cambodian-American who was convicted of a particularly serious crime but "the Immigration Judge found [her] eligible for a waiver of inadmissibility, as well as for adjustment of status, and he granted her this relief from removal."); INA § 209(c), 8 U.S.C. § 1159(c) ("The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) ... shall not be applicable to any alien seeking adjustment of status under this section, and the Secretary of Homeland Security or the Attorney General may waive any other provision of [section 1182] ... with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.") (emphasis added); Nguyen v. Chertoff, 501 F.3d 107, 109-10 (2d Cir. 2007) (petition granted of a Vietnamese-American convicted of a particularly serious crime); City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985) ("The Equal Protection Clause of the Fourteenth Amendment commands that ... all persons similarly situated should be treated alike.").
  3. Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015) (collecting court cases) ("An alien who adjusted status in the United States, and who has not entered as a lawful permanent resident, is not barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), as a result of an aggravated felony conviction.") (emphasis added); see also De Leon v. Lynch, 808 F.3d 1224, 1232 (10th Cir. 2015) ("Mr. Obregon next claims that even if he is removable, he should nevertheless have been afforded the opportunity to apply for a waiver under 8 U.S.C. § 1182(h). Under controlling precedent from our court and the BIA's recent decision in Matter of J–H–J–, he is correct.").
  4. 8 U.S.C. § 1229b(b) (titled "Cancellation of removal and adjustment of status for certain nonpermanent residents").
  5. 8 U.S.C. § 1255 ("Adjustment of status of nonimmigrant to that of person admitted for permanent residence").
  6. "Board of Immigration Appeals". U.S. Dept. of Justice (DOJ). March 16, 2018. Retrieved 2018-11-19. BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court. See also 8 C.F.R. 1003.1(g) ("Decisions as precedents.") (eff. 2018).
  7. 8 U.S.C. § 1229a(e)(2) ("The term 'removable' means—(A) in the case of an alien not admitted to the United States, that the alien is inadmissible under section 1182 of this title, or (B) in the case of an alien admitted to the United States, that the alien is deportable under section 1227 of this title."); see also Tima v. Attorney General of the United States, 903 F.3d 272, 277 (3d Cir. 2018) ("Section 1227 defines '[d]eportable aliens,' a synonym for removable aliens.... So § 1227(a)(1) piggybacks on § 1182(a) by treating grounds of inadmissibility as grounds for removal as well."); Galindo v. Sessions, 897 F.3d 894, 897 (7th Cir. 2018).
  8. "I-485, Application to Register Permanent Residence or Adjust Status". United States Citizenship and Immigration Services (USCIS). Retrieved September 15, 2018.
  9. Shaw, Tejas; Badia-Tavas, Mercedes; Durham, Michael; Bruno, Mayra (17 February 2020). "Legal Permanent Residency Becomes More Challenging As New Public Charge Rule Goes Into Effect". National Law Review. Retrieved 19 May 2020.
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