Generally speaking, immigrants living in the U.S. unlawfully for 180 days or more are subject to a three- or 10-year bar from re-entering the U.S. if they leave. This presents a problem because the normal process of obtaining a green card (lawful permanent or conditional residence) requires the immigrant to visit a U.S. consulate in his home country. For this reason, an undocumented immigrant may choose to remain in the U.S. illegally for fear of being barred from re-entry if he should leave to obtain a green card.
Fortunately, the adjustment of status process may allow you to apply for lawful permanent residence even though you are already present in the United States. An adjustment of status allows a foreign national to obtain a green card without having to return to his home country. If you are trying to obtain a green card, or see if you qualify for an adjustment of status, contact a qualified immigration attorney and set up a meeting.
Adjustment of status eligibility guidelines
Not everyone is eligible to adjust their status. The guidelines below can help you determine if you qualify, but consulting with an experienced immigration attorney is essential.
- You must already be eligible for a green card through an employer, family member, asylum status, or refugee status.
- You must have an approved visa petition if your eligibility is based on family or employment.
- If you came to the U.S. on a K-1 (fiancé visa), you must be married to the person who petitioned for your visa.
- If you came to the U.S. as a refugee or have been granted asylum status, at least one year must have passed.
- In most circumstances, you have to have entered the U.S. with permission by border agents. There are some exceptions to this rule, however, and an experienced immigration attorney can help you determine your eligibility.
- You must be in valid visa status when you apply to adjust status.
According to Martha Schoonover, an immigration attorney with Greenberg Traurig, LLP in Washington, D.C., it is extremely important to hire an experienced immigration lawyer to assist with preparing adjustment of status applications, and in attending the in person interviews for all applicants.
“Adjustment applications, now almost 20 pages long, are being scrutinized more closely than ever and examiners are looking for reasons to deny, such as a short period of working without authorization years before, or even a minor violation of student status,” Schoonover says. “While they have discretion to overlook minor violations, they are not exercising it. In fact, during the first nine months of FY 2018, the denial rates for both family-based and employment-based adjustments increased to 13% and 7.9% respectively.”
Know your filing timeline
The process to adjust status can be lengthy and complicated. Assuming that your application has been properly filed, USCIS will mail you a letter confirming receipt of your application. This letter, called the Notice of Action, will arrive two to three weeks after you file.
Then, about three to five weeks after filing, you will receive a notice to appear for your biometrics appointment. This involves fingerprinting, as well as a criminal background check and security clearance.
About six to 12 months after filing, you will receive a notice to appear at an adjustment of status interview. You want to be prepared. You should arrive at your appointment with several necessary items, such as a copy of your adjustment of status application and your immigration petition.
On occasion, applicants are granted permanent residence at this interview. If this happens, your green card will be mailed to you. However, you will typically receive the approval notice after your interview and the green card a bit later. If you are denied, you will receive a notice explaining the reasons for the denial, and whether you are eligible to appeal the decision.
Seek professional advice
It is in your best interest to consult with a skilled immigration attorney if you wish to apply for an adjustment of status. This is especially true if you are facing deportation (removal) proceedings. In such an urgent situation, legal counsel is critical to a favorable outcome.