Who Can Adjust Their Status to Green Card Here?

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Recently, we’ve received many questions regarding adjustment of status. This is an extremely important issue, maybe the most important, for intending immigrants who are already here in the U.S. Not being able to adjust their status to green card here but having to go back to their countries to finalize the process could be disastrous due to the 3- or 10-year bar. However, from the emails and comments received, quite a few people are confused as to who is eligible to file for adjustment and when. So, we thought a post regarding this subject would be helpful to the readers of this blog.

First of all, adjustment of status is the process by which the status of a person already in the United States, either on some temporary nonimmigrant visa or no visa at all, is adjusted to that of a lawful permanent resident (LPR), or green-card holder. It is a process that involves making sure the immigrant is admissible to the U.S., that is, does not have problems in their past that would prevent them from getting their green card, such as criminal, health, drug problems, terrorism-related issues, immigration problems such as a prior removal, deportation, unlawful presence or being out-of-status in the U.S., and many other grounds. See Top 10 Reasons Why Immigrants Get Visas Denied. Thus, adjustment of status is not automatic and it is not a “right” to a green card, as some people have believed. In fact, many immigrants’ adjustment applications are denied for various reasons, and they are placed into removal proceedings soon after if they were in unlawful status in the U.S. prior to filing for adjustment.

When can an immigrant file for adjustment of status? The first thing that must be checked is: does the immigrant have an I-130 or I-140 petition for him or her that has been approved yet? If not, then they cannot yet adjust status, unless they are being petitioned for as an immediate relative who is filing the I-130 concurrently (at the same time) as the adjustment of status application. Only immediate relatives are allowed this type of concurrent application, and these people are defined as the following categories of relatives of U.S. citizens: (1) spouses, (2) children under 21, and (3) parents (when the citizen is at least 21). For other immigrants who are not immediate relatives, they must have a standalone I-130 (or I-140) filed for them and that must be approved. We have called this getting through Stage 1 of the process.

The second thing that must be checked is: is a visa number available currently in the correct category? The way to do that is to go to the State Department Visa Bulletin, click on “Current Bulletin,” and check what priority date is currently the cut-off date for your category and country. Compare the cut-off date to your I-130 petition’s priority date. Only those with priority dates prior to the cut-off date have visa numbers available. So, if your date is the same or after the cut-off date, no visa number is available at this time for you. The exceptions are those immediate relatives again. There are always visa numbers available for these people at any time, i.e., no wait for visa numbers for them.

If and only if a visa number is available for an intending immigrant can that person file for adjustment of status. Since a visa number may not be available for many years in the category the immigrant has been petitioned under, the adjustment application cannot be filed until then. In other words, the immigrant must go through Stage 2 of the process, which can take many years. Incredibly, people have consulted and informed us that some other lawyers have told them that they could file for adjustment now or soon, ignoring their situation that a visa number would not be available for years, or still waiting in Stage 2. Filing an adjustment application prematurely, before a visa number is available, may result in a loss of thousands of dollars in filing fees (U.S. Citizenship & Immigration Services sometimes collects the fees and then tells the immigrant they’re not eligible to file for adjustment yet!) AND may result in removal proceedings if the immigrant was out-of-status or illegal in the U.S. prior to filing for adjustment.

It cannot be overly emphasized that if you are even one day out-of-status in this country prior to filing for adjustment, the adjustment application will be denied, unless you fall into one of the exception categories below (categories 2 through 5). If no exception applies, you would have to go back to your country to receive the immigrant visa leading to the green card. However, stepping foot outside the U.S. will trigger the 3- or 10-year bar if you have been more than 180 days out-of-status in this country. As a result, you may not be able to come back for 3 or 10 years, a dilemma which is described in our other blog articles “I’m Illegal, I Can Still Get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend?” and “Is the 10-Year Bar for Real and Could It Stop Me from Getting My Green Card?“

Who can file for adjustment of status? The following are the ONLY categories of people who can file for adjustment when a visa number is available for them:

1. A person who is in-status on their visa, that is, maintaining legal status on their visa, at the time they file for adjustment.

Example: A is maintaining status on his student visa by duly attending school and finishing up his degree. A marries B, a U.S. citizen. A can file for adjustment through being sponsored by B since he is in-status on his student visa.

2. A person who is out-of-status on their visa, no matter for how long, BUT is being petitioned for as an immediate relative.

Example: A’s tourist visa expired 5 years ago and she is still in the U.S. A marries B, a U.S. citizen. A can now file for adjustment even though she is out-of-status because, as the spouse of a citizen, she is categorized as an immediate relative of B. Immediate relatives also include children under 21 of citizens, and parents of citizens when such citizens are 21 and over.

3. A person who is out-of-status on their visa, not being petitioned for as an immediate relative but in a preference relative category (other relatives who are not “immediate relatives”), or petitioned by a U.S. employer, but had an I-130 petition, I-140 petition, or labor certification filed for them on or before April 30, 2001.

Example: A’s H-1B visa expired two years ago and he is still in the U.S. out-of-status. He came to the U.S. as an F-1 student in Aug. 2000 but changed status to H-1B in 2002. A has a U.S. citizen sister, B, who filed an I-130 petition for A on April 30, 2001 in the F4 category (brothers and sisters of U.S. citizens). A visa number is not available in this F4 category for many years, but when it is, A can file for adjustment even though he has been out of status and not categorized as an immediate relative of B.

4. A person who entered the U.S. illegally, but had an I-130 petition, an I-140 petition, or a labor certification filed for them on or before April 30, 2001.

Example: A came to the U.S. illegally in 1999. A now marries B, a U.S. citizen. However, A had a proper I-130 filed for him by a U.S. citizen ex-wife on April 21, 2001 that was discontinued due to their divorce. A can now file for adjustment through being sponsored by his current wife, B.

5. A person who has not been more than 180 days out-of-status on their visa by either violating the terms of the visa, or engaging in unauthorized employment, who is now adjusting under an employment-based category, i.e., being petitioned for by a U.S. employer. Also, this assumes this person is not in category 3 above, i.e., does not have a labor certification or employment petition filed for them on or prior to April 30, 2001.

Example: A is here on an H-1B visa to work only for company X. However, A engaged in unauthorized employment by working on the side for company Y for 180 days. Y filed an I-140 petition for A to offer a permanent job position. When a visa number became available last month on the I-140, A had otherwise maintained her H-1B status by continuing to work only for X, so she was allowed to adjust her status to green card based on Y’s I-140 for her.

Bad Advice on Adjustment of Status

An example of the bad and confusing advice given to some readers of this blog regarding the subject of adjustment of status is found in the following email from a concerned mother:

Guru, I’m a green card holder and will be a citizen in three years. My daughter is here this past summer on a tourist visa and we talked about petitioning for her green card, since she is unmarried and over 21 and she has the right to have a green card. Well, her tourist visa expires in December, so she’s still here visiting legally. I already filed the I-130 for our daughter, under the F2B category: unmarried sons and daughters 21 and over of legal permanent residents.

We consulted other lawyers and one said her I-94 [form given to visa holders at airport stating how long they can stay in the U.S.] should be ignored since we filed the I-130 form. The other asked us to file the Adjustment of Status since she is already here with us, this way she could stay here and wait for her resident visa. As I said before, I am confused as well, because every person seems to say something different, and I don’t know who I should listen to. I just want do everything legally, so she can have her green card correctly and live here with me.

Wow, some terrible advice this woman got for her daughter here!  She has been misled by the lawyers she consulted with (if what she has described is accurate). She said: “We consulted other lawyers and one said her I-94 should be ignored since we filed the I-130 form.” The I-94 was the form given to the daughter when she came on the tourist visa to put in her passport and on it is stamped the final date she is entitled to stay in the U.S. to visit, after which she must leave. This lawyer’s advice is bad because having an I-130 filed for the daughter does not extend the daughter’s lawful status in this country! It is only a petition to try to prove to the government that she is the daughter of her mother. If the daughter ignores the I-94, meaning she will not leave the U.S. on the final date stamped in there, she will overstay her tourist visa and be out-of-status, unless she manages to change her status in time to another type of nonimmigrant visa, such as a student visa. But, assuming she is unable to change her status and continues to stay in this country out-of-status, she will not be able to adjust her status to green card here, which we suspect is what she and her mother really want.  After reading the information above regarding who can adjust their status, the reader can easily verify that the daughter here will not fall within category 2 of persons who can adjust because she is not an immediate relative of her mother (she is over 21 and the mother is only an LPR, not a citizen). She does not fall into category 3 because she does not have an I-130 petition filed for her on or before April 30, 2001.

“The other [lawyer] asked us to file the Adjustment of Status since she is already here with us, this way she could stay here and wait for her resident visa.” This is equally bad advice from another lawyer. As seen above, the daughter is in the F2B category, and a check of the October 2009 Visa Bulletin shows that the cut-off date in that category and for most countries is: 22AUG01. Therefore, only those people in the F2B category who had the I-130 petition filed for them prior to August 22, 2001 currently have visa numbers available. The daughter’s priority number here is somewhere in the summer of 2009, let’s say August 2009. Thus, her priority date is about 8 years behind! She cannot file for adjustment at this time, but must still go through Stages 1 and 2 of the process, which will take about 8 years or so. In fact, filing adjustment of status prematurely may lead to removal proceedings if she is out-of-status, as mentioned above. Perhaps what the lawyer actually meant was that she will be able to file for adjustment of status in the future (8 years or so from now, probably less) whenever a visa number becomes available in the F2B category. However, during that time, what this lawyer did not seem to understand, or failed to explain, is that the daughter has to find a way to maintain her legal status in this country for many years by some other type of nonimmigrant visa, such as a student visa, H-1B visa, etc.

The problem with these nonimmigrant visas is that one may find it difficult to change status to those visas or maintain status in one of those visas for that long. For example, can one really remain a student for 8 years or so? The student visa requires that the student enrolls in a school with a course of studies leading to a degree or objective. Perhaps if she tries to get a Bachelor’s degree, a Masters, and a Ph.D, then eight years might be possible. As for a work visa, such as the popular H-1B, many want that visa but do not qualify because they do not have a bachelor’s degree, and/or because they cannot find a U.S. company willing to petition for them in a job that normally requires at least a worker with a bachelor’s degree, or they simply cannot find such a job offer at all in this economy! Thus, it is not always easy to try to maintain legal status at all times in this country prior to filing for adjustment of status while waiting for a visa number to be available.

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