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ANSWERS TO YOUR QUESTIONS ABOUT ADJUSTMENT OF STATUS TO PERMANENT RESIDENT

YOUR IMMIGRATION LAWYER 

Sharlene Sharmila Richards

Sharlene Sharmila Richards

 

ANSWERS TO YOUR QUESTIONS ABOUT ADJUSTMENT OF STATUS TO PERMANENT RESIDENT

Q:           What is Adjustment of Status? Does it mean that I am changing my current non-immigrant B-2 Visitor status to another non-immigrant status, for example E-2 Treaty Investor status?

A:         No. Adjustment of Status is a term of art. It is the process where an application is filed by an individual who is physically present in the United States to change his or her non-immigrant status to that of an immigrant or permanent resident. If one changes from a non-immigrant status to another non-immigrant status, that is called a change of status, not adjustment of status.

 

Q:           How do I know if I am eligible to file for adjustment of status?

A:            You must meet the eligibility criteria in order to adjust status to that of a permanent resident of the United States. To be eligible, you must reside in the United States; have an approved immigrant petition (I-130, I-140 or I-360 for example); the priority date for your preference category and country of chargeability must be current as published by the Visa Bulletin, and you must have been lawfully admitted to the United States. In addition to that, you must not be statutorily barred from adjustment of status which may include unlawful entry to the United States, failure to maintain status or have engaged in unauthorized employment. Because the rules for adjustment of status are rather complex, it is advisable to seek the advice of an experienced immigration attorney before your file your case.

Q:           I am currently on J-1 non-immigrant status and I wish to apply under EB-1 as outstanding researcher. Can I adjust my status when my EB-1 Immigrant Petition has been approved?

A:            If you have J-1 non-immigrant status, you may not adjust status if you are subject to the two year foreign residence requirement. In such instance, to adjust your status you must have satisfied the two year foreign residence requirement, or have obtained a waiver of this requirement.

Q;           I am married to a US Citizen and I like to adjust my status in the United States. I entered this country on the Visa Waiver Program about 6 months ago and we have not filed the I-130 petition and my I-485 adjustment of status application within 90 days of my arrival here. Can I still file to adjust status?

A:            According to the November 14, 2013 USCIS Memorandum, Visa Waiver entrants who marry a US Citizen are permitted to file for adjustment of status outside the 90 day period. However, you will need to be aware that filing outside the 90 day period comes with a catch – if your adjustment of status is denied, you do not have the opportunity to appeal the decision nor will your case be referred to Immigration Court for the Judge to decide. You will have to leave the United States.

Q:           I am married to a US Citizen but I entered illegally into the United States. I would like to adjust my status in the United States. Is this possible?

A:            Unless you are 245(i) eligible, you may not adjust status in the United States. Once your wife’s I-130 petition has been approved, you will have to file and be granted the provisional waiver for unlawful presence and depart the United States in order to receive your immigrant visa at the consulate in your home country.

Q:           My wife came here illegally as a child. She was granted DACA (Deferred Action for Childhood Arrivals) and she had travelled on advance parole and returned back to the United States with inspection. I am a US Citizen. Can she now file for adjustment of status?

A:            Yes, it appears that for those individuals who were admitted to the US under advance parole may file for adjustment of status if they meet all the other eligibility criteria. Please seek the advice of a qualified immigration attorney to properly evaluate her case for adjustment of status.

Q:           I have overstayed my B-2 Visitor Visa for more than 8 months. I like to know if I may apply to adjust my status through my employer?

A:            For adjustment of status through employment, you have to maintain your status until the time you adjust your status. As such, you may not adjust your status unless you are eligible under 245(i).

Disclaimer: Any advice provided in this article is general in nature and not intended to constitute legal advice for any specific case. Please consult with an immigration lawyer about the specific circumstances of your case.

Sharlene Sharmila Richards

Sharlene Sharmila Richards is a licensed Immigration Lawyer practicing in Houston, Texas. She is a member of the American Immigration Lawyers Association. She was admitted to the New York State Bar in 2000 and is a member of the 5th Circuit Court of Appeals and a member of the US Supreme Court. She has very successfully assisted many of her clients in their citizenship applications and interviews. If you require immigration advice or assistance, you may contact her at telephone number 713-623-8088 or by email at srichardslaw@aol.com to schedule a free consultation to discuss your case.


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