Adjustment of Status: Waiting Inside the United States for your Green Card Interview

This article originally appeared in our 2016 Newsletter

Getting your green card is a two-step process: Step One is an “Immigrant Visa” petition, which declares the category for your green card (usually Family or Employment--More information about the green card categories here); and Step Two is the interview.

The purpose of the interview process is to go over your immigration and criminal record in detail, and make sure you are a “good person” deserving of a green card. When planning out your case, you must decide whether you will interview inside the U.S. (“Adjustment of Status”), or at a U.S. consulate abroad (“Consular Processing”).

There are only two ways you can qualify for Adjustment of Status:

1. Did you enter the U.S. lawfully?

You must already be inside the U.S. when you apply for Adjustment of Status. It requires that you have entered the U.S. lawfully with inspection: this means using a visa, or advance parole, or a SAW (Special Agricultural Worker) card, or most situations where you passed through U.S. Customs and Border Patrol and were permitted to enter the U.S. This can even include situations where you weren’t asked to show any documents, such as being a passenger in a car.

2. If not, then are you the beneficiary of a green card petition filed on or before April 30, 2001?

This exception is known as "245(i)." Not only does it include petitions filed directly for you, but also petitions filed for your spouse during your marriage, and also for your parents when you were a child under the age of 21. To take advantage of "245(i)," you must show that it was a bona fide, approvable petition (not frivolous), and if it was filed on or after January 14, 1998 then you must have been physically present in the U.S. on December 21, 2000. Finally, most everyone must pay a penalty fee of $1000 to the government if over the age of 17.

Disqualifications to Adjustment of Status

Even if you meet one of the above descriptions, immigration laws forbid certain applicants from adjusting status if the following has occurred:

1. unauthorized employment after your last entry**
2. unlawful immigration status after your last entry**
3. entering with a visa waiver (ESTA)

**There are exceptions for green cards based on marriage to a U.S. citizen, or employment.

Work and travel during the adjustment of status process

Adjustment of Status applicants are automatically eligible for a work permit, which is taking about 7 months to issue at this point in time. Also, you are supposed to remain inside the U.S. once you apply, but you can separately request permission to travel via an "advance parole" document. However, even if permission is granted, your departure from the U.S. could accidentally trigger mandatory penalties if you have a faulty immigration record.

You cannot enter the U.S. with a visa, solely for the purpose of Adjustment of Status

There is no visa that lets you enter the U.S. for the purpose to apply for Adjustment of Status—unless you use a K-1 fiancé(e) visa (see below). If you have a visitor’s visa, or any other visa and use it for the only purpose to get inside the U.S. and file an Adjustment of Status application, then that is fraud and cases are screened by USCIS for these situations. There is a waiver for fraud, but it costs thousands of dollars in filing fees and attorney fees, and delays your case by years.

Fiancé(e) visas

The K-1 fiancé(e) visa is the only visa that allows you to enter the U.S. and adjust your status through marriage. But it is a separate and different process, addressed elsewhere in our blog.

Pros and cons of Adjustment of Status

The benefit of Adjustment of Status is that you can remain in the U.S. without worrying about maintaining a visa status or any other kind of lawful status. You can get a work permit, and also permission to travel in most instances. Finally, in some instances those with unlawful presence in their records can avoid mandatory delays/penalties that are imposed for leaving the U.S. to attend an interview at a consulate. The drawbacks are that it is more expensive with the filing fees, and for the past couple of years it could take longer than going to a consulate abroad. Also, the waiting period for the work permit and the advance parole travel permission are very lengthy right now, seven months.

Confer with an experienced immigration attorney about your immigration history to make sure you are eligible for adjustment of status and advance parole. The Adjustment of Status process is lengthy and expensive and you do not want to invest time and money only to be told you aren’t eligible at your interview. Please see our other blog post for additional information about Adjustment of Status.