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What is
adjustment of status (AOS)?
Adjustment
of status is a process where a foreign national, after having established
eligibility for permanent residency, goes from being a nonimmigrant to
having a green card. Congress created the adjustment of status provision
as a convenience to foreign nationals. Prior to the adjustment of status
provision, individuals seeking permanent residency had to apply overseas
at a U.S. consulate and then enter the U.S. with an immigrant visa. This
was an inconvenience to foreign nationals currently in the U.S. on a
temporary visa. Adjustment of
status permits a foreign national to go from being a nonimmigrant to an
immigrant without having to leave the U.S.
The key issue to keep in mind is that adjustment of status is the process
one undergoes AFTER establishing eligibility for permanent residency. It
is only available after a foreign national has demonstrated that he or she
qualifies for permanent residency based on one of the permanent residency
categories. This is usually through a family relationship or an
employer/employee relationship. Thus,
individuals who want to apply for a green card and mistakenly apply for
this procedure without establishing eligibility will have their adjustment
application denied. Understanding this critical difference will save a lot
of aggravation and a significant amount time.
Adjustment of status is discretionary-- it is not guaranteed that the INS
will approve the application. Therefore, the foreign national should keep
in mind the possibility that he or she will have to go through consular
processing (i.e., obtaining an immigrant visa at a U.S. consulate) if the
adjustment application is denied.
There are a few instances where such an application may be denied:
Foreign nationals entering the U.S. without inspection. If a foreign
national entered the U.S. by sneaking across the border and was not
examined by an immigration officer, he is not eligible for adjustment of
status. This applies even to
foreign nationals married to U.S. citizens or to foreign nationals who are
related to the U.S. citizen as an immediate relative.
Violating one's immigration status. A foreign national who violated
the restrictions on her temporary visa while in the U.S. may not be able
to adjust her status. This may occur when a foreign national who does not
have work authorization engages in unauthorized employment. It can also
occur when a person stayed beyond the expiration date of her visa status.
These two violations are quite common, and although individuals
don’t feel like it’s a big deal when the violation occurs, there are
negative consequences that may crop up years later when seeking a green
card. Note that for certain applicants who established permanent resident
eligibility through an employment relationship or for immediate relatives
of U.S. citizens, this kind of disqualification may not apply.
In addition, individuals who have adjustment applications pending must
apply for advance parole if they wish to leave the U.S. in the interim.
Failure to do so will result in the INS considering the application
abandoned. In that case, the foreign national will likely have to apply
for an immigrant visa overseas and wait for processing of the permanent
residency application while outside of the U.S.
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