The Immigration and Nationality Act (INA) permits the change of an individual’s immigration status while in the United States from nonimmigrant or parolee (temporary) to immigrant (permanent) if the individual was inspected and admitted or paroled into the United States and meets all required qualifications for a green card (permanent residence) in a particular category. The common term for a change to permanent status from a nonimmigrant or temporary status is adjustment of status (AOS).
The INA provides an individual two primary avenues to permanent resident status. Adjustment of status is the process by which an eligible individual already in the United States may obtain permanent resident status (a green card) without having to return to their home country to complete immigrant visa processing.
Consular processing is an alternate process for an individual outside the United States (or who is in the United States but is ineligible or prefers not to adjust status) to obtain a visa abroad and enter the United States as a permanent resident. This avenue is referred to as consular processing.
Green Card eligibility
In general, there are multiple ways individuals can become eligible to apply for permanent residence (green card) in the U.S. Those categories follow below:
- Lottery: Occurs each October and is only open to individuals from certain countries.
- Family-based: Available to certain close relatives of U.S. citizens and Lawful Permanent Residents.
- Investment: Available to certain individuals who invest at least $1 million (or at least $500,000 in certain circumstances) “in a new commercial enterprise in the U.S. which will create full-time positions for at least 10 qualifying employees.”
- Humanitarian (Asylum): Available to individuals who possess a “well-founded fear” of persecution upon return to home country, victims of certain crimes or human trafficking, and/or those who qualify under the Violence Against Women Act.
- Employment-based: Available to individuals who receive sponsorship from their employer through an offer of continuing employment.
Other avenues for green card eligibility may be available in certain circumstances. Individuals should consult with experienced immigration counsel to discuss their options if they are considering applying for permanent residence in the U.S.
Steps for adjustment of status
Depending on the category, an applicant may be eligible to file the Form I-485, Application to Register Permanent Residence or Adjust Status simultaneously while filing the I-140 Immigrant Petition for Alien Worker. This is called “concurrent filing.”
However, in all cases, an immigrant visa must be available to file an application to adjust status. The I-140 must be approved before U.S. Citizenship and Immigration Services (USCIS) will complete the adjudication of the I-485, even if concurrently filed. Typical processing times for an I-140 petition vary.
The general steps to apply for adjustment of status follow below:
Visa availability: An applicant cannot file an I-485 until an immigrant visa is available in their green card category. Immigrant visa numbers are published in the Visa Bulletin on a monthly basis by the Department of State. Long waits for eligibility to file the I-485 are common for countries with high rates of immigration to the U.S.
File Form I-485, Application to Register Permanent Residency or Adjust Status: The I-485 and supporting documents are filed with the USCIS Service Center having jurisdiction over the applicant’s place of employment (where the application is based on an underlying I-140 petition).
Application Support Center appointment (biometrics): The applicant will be notified to appear at an Application Support Center for biometrics collection after the I-485 is filed. This usually involves obtaining a digital photograph and fingerprints. The information will be used to conduct the required security checks and for eventual creation of a green card, employment authorization document and/or advance parole document (see below). The scheduling of the biometrics appointment is typically 30 days following the I-485 filing.
Ancillary benefits to the I-485: I-485 applicants are entitled to ancillary benefits including employment authorization (EAD) and permission to travel abroad (Advance Parole) while awaiting adjudication of their case. Note, however, that it is not always necessary for I-485 applicants to apply for these benefits. For example, if the applicant maintains valid H or L status, they may continue to travel and continue to work under the terms of that status. An EAD/Advance Parole document may be renewed as long as the I-485 remains pending. Estimated processing times for EAD/Advance Parole applications vary by circumstance.
Adjudication: After all paperwork has been received, security checks completed, and other eligibility requirements reviewed, the applicant’s case will be ready for a decision by USCIS. In all cases, the applicant (and their attorney-of-record) will be notified of the decision in writing. The adjudication of an I-485 could take 9-12 months or more. If approved, the applicant will receive the Green Card by mail.