Adjustment of Status/Change of Status
Visawolf LLP published a Newsletter on December 6, 2006 which featured an article explaining why a given adjustment of status case is taking so long. To read the full article please go to our news section .
The application for permanent residence may be filed in two ways. The eligible family members may apply for permanent residence at the same time. This includes the spouse and any unmarried children less than 21 years of age. If the permanent residence application is filed inside the United States with the Citizenship and Immigration Service (USCIS), it is called Adjustment of Status (Form I-485). As long as there is no waiting list under the immigration quota, the Immigrant Visa Petition and Adjustment of Status steps can be filed at the same time.
If the application for permanent residence is processed outside the United States at an American consulate, it is called Consular Processing of an Immigrant Visa (Form DS-230). The Consular Processing step can only be started if the Immigrant Visa Petition has already been approved.
Requirements for Adjustment of Status.
The applicant for adjustment of status must show proof of legal entry, maintenance of legal immigration status, and immigrant visa availability. In addition, the applicant must show he or she is admissible and that any adverse factors in the case are outweighed by positive factors. Each applicant must under a medical exam. Applicant over age 16 will be fingerprinted for a police clearance. Each eligible dependent family member must file a separate application.
The requirements of proof of legal entry and maintenance of legal status may be waived for a person who had an immigrant visa petition or labor certification case filed before April 30, 2001 and who agrees to pay a $1000 penalty to the government. If an Employment-Sponsored Immigrant has a violation of legal status of less than 180 days, he or she is still eligible for adjustment of status, without payment of the $1000 penalty and without having had an immigrant visa petition or labor certification case filed before April 30, 2001.
Interim Benefits of Adjustment of Status
An applicant for adjustment of status may receive a work permit and travel permit while the adjustment of status application is pending.
- Work Permit. Applications for unrestricted employment authorization (work permit) may be filed with the adjustment of status application. The work permit may be renewed repeatedly while the adjustment of status application is pending.
- Travel Permit. An adjustment of status applicant holding a valid H or L visa may travel outside the US and reenter while the adjustment of status application is pending, as long as the visa remains valid. However, if the applicant does not have a valid H or L visa at the time of reentry, he or she must obtain an “advance parole document” (travel permit) from the USCIS before leaving on any international trip. The travel permit is required for any overseas trip while the adjustment of status application is pending. The application for travel permit may be filed at the same time, or after, the adjustment of status application. The travel permit may be renewed repeatedly while the adjustment of status application is pending. An applicant who has not maintained legal status for more than six months after April 1997, or who is otherwise inadmissible, should not obtain an Advance Parole travel permit and must not make any overseas trip while the adjustment of status application is pending.
The adjustment of status application is filed with the USCIS. The USCIS will contact the applicant to undergo fingerprinting. The applicant will be asked to provide proof of employment with the sponsoring employer. Normally an Employment-based immigrant will be processed for permanent residence without an interview. A family based immigrant will be scheduled for an interview at the local USCIS office.
Permanent residence is approved when adjustment of status is granted. If an adjustment of status application is denied, the applicant may remain in the United States during any review or appeal period. A permanent resident may apply for naturalization as a United States citizen five years from adjustment of status approval date (three years if married to a US citizen)
The USCIS will send a receipt within one month after filing the adjustment of status application, which provides the estimated processing time. Assuming no waiting list develops in the future, the expected processing time is about one year. Because government processing times vary and a case may have special circumstances, the applicant should not make any final plans such as starting or terminating employment or school, traveling to or from the United States, purchasing nonrefundable tickets, selling or buying property, signing or terminating a lease, shipping or storing personal goods, etc., until permanent resident status is granted or the applicant has otherwise received written advice to take such action from the Law Office.
For further information, please contact us.
Change of Status
“Change of Status” refers to the process of changing from one temporary visa classification to another temporary visa classification while inside the US. “Adjustment of Status” refers to process of changing from any temporary visa classification to permanent or immigrant visa classification while inside the US.
To be eligible for Change of Status, the applicant must:
- be present inside the US in legal temporary visa status
- be eligible for the new temporary visa classification sought
- file an application for change of status on time
- deserve the exercise of discretion by the government
For more information, or to schedule a consultation with the immigration attorneys at Visawolf, simply click here. Our multi-lingual team provides immigration services in English, Spanish, and Chinese.
From our offices in Concord, located in the San Francisco Bay Area of California, we serve clients throughout the United States and the world. We provide immigration expertise to clients in all parts of the U.S., including Texas, Hawaii, New York, Florida, New Jersey, Illinois, Washington, and Ohio. We serve clients in all parts of California, including San Francisco, Los Angeles, Oakland, Berkeley, San Diego, Sacramento, San Jose, Fresno, Bakersfield, and Redding.