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Adjustment of Status

Adjustment of status is a procedure that serves two purposes: first, for people in removal proceedings, Congress has created this procedure as a relief to enable specific classes of immigrants facing deportation to remain in the U.S. For people who are not in removal proceedings, this is a regular procedure created by Congress to allow a noncitizen gets a green card.

 

You may be able to apply and obtain a green card without leaving the U.S if you qualify. The procedure involved is called adjustment of status.  If you are qualified to apply for adjustment of status, you also are qualified to apply for an Employment Authorization (EAD) and, if you are eligible, for a travel permit (“advance parole”). Generally, an applicant for adjustment of status must have entered the U.S. legally and have never violated his immigration status.

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How to Apply for Adjustment of Status (AOS)?

To start the process, you must submit a Form I-485 Application to Register Permanent Residence or Adjust Status. Your application must be accompanied by supporting evidence and the proper filing fee.   You will also need to file Form I-765 to apply for an EAD work permit and use Form I-131 to apply for an Advance Parole travel permit. However, there are some exceptions to the general rule to qualify for Adjustment of Status.

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  1. Section 245(i) of the law provides that certain persons with old priority dates may pay a penalty fee and adjust their status despite entering the U.S. illegally or violating or overstaying their nonimmigrant status.

  2. Section 245(k) provides that if a person is applying for AOS pursuant to an employment-based immigrant visa petition, he is eligible to do so as long as he entered the U.S. lawfully and has not been out of status for over 180 days since his most recent admission.

  3. Also, persons who are immediate relatives (parents, spouses, and children of U.S. citizens) may adjust their status if they entered the U.S. lawfully even if they overstayed or worked without authorization without having to pay a penalty fee.  A U.S. citizen's son or daughter must be 21 years of age or older in order to sponsor his parents for green cards.

Exceptional and extremely unusual hardship component must be established by showing that your qualifying relative would suffer hardship substantially beyond that which would ordinarily result from your removal from the United States.  Hardship to yourself will not be considered by the Immigration Judge.  The Judge will consider your qualifying relative’s age, health, length of residence in the United States, as well as family and community ties in the U.S. and abroad.  All hardship factors should be considered in the aggregate.

The Board of Immigration Appeals (BIA) has determined that diminished educational and economic opportunities in the country of deportation, when combined with the financial burden on the adult respondent, who was the sole financial provider for her six U.S. citizen children, the children’s unfamiliarity with the language in the country of removal, the lawful residence of the respondent’s immediate family in this country, and the lack of family ties in the country of removal, among other factors, cumulatively rendered the hardship “well beyond that which is normally experienced in most cases of removal.”

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The BIA has published the following decisions to define the hardship standard in cancellation of removal for non-LPRs cases:

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Exceptional relaxed rules for cancellation of removal for non-LPRs apply to battered spouses and children.

Only 4,000 persons may be granted cancellation of removal for non-LPRs and suspension of deportation in a single fiscal year.

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Depending on your status, if you are already in removal proceedings and meet the statutory qualifications for applying for cancellation of removal, it is probably a wise idea to apply. However, if you are not in removal proceedings, and cancellation of removal seems to be your only option to legalize your immigration status, think twice before applying. If you lose, you could be deported. 

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