Green Card
(I-485, Application to Register Permanent Resident or
Adjust Status)
What is Following-To-Join Benefits?
Parent’s LPR Status
Your parent became a lawful permanent resident after you were born. You
may be eligible to receive following-to-join benefits if you are the
unmarried child under age 21 of the lawful permanent resident. In these
cases, you may apply to adjust to permanent resident status at the same
time that your parent applies for following-to-join benefits for you.
Spouse’s LPR Status
Your spouse became a lawful permanent resident after you were married.
You may be eligible to receive following-to-join benefits. In these cases,
you may apply to adjust to permanent resident status at the same time
that your spouse applies for following-to-join benefits for you.
What is a Discretionary Denial?
The one thing to understand about AOS is that it is discretionary, not
mandatory. It is possible for a person who is technically eligible for
immigrant status to nonetheless be denied adjustment of status in the
exercise of discretion. The most common instances of such discretionary
denials involve cases where the applicant abused the nonimmigrant
process.
For example, if a person applies for admission into a school or for a
change in nonimmigrant status within 30 days of entry, they are presumed
to have acted in bad faith. That is, they had the preconceived intent to
make the change and they used an easier to obtain visa in order to evade
the normal screening process abroad for the visa they really wanted.
If the application occurs between 30 and 60 days after entry, no
presumption is made, but there is a strong suspicion that the person may
have acted in bad faith. The case will be scrutinized carefully. If the
application occurs more than 60 days after entry, the presumption is that
the applicant acted in good faith. Both the USCIS and the State
Department reserve the right to re-examine such cases, however, if there
is any additional evidence of wrongdoing. If an AOS applicant has
anything in his or her past visa history that suggests that he or she may
have abused the visa process, or otherwise tried to take shortcuts, the
USCIS has made it clear that they can and will deny such adjustment
applications in the exercise of discretion. Discretionary AOS refusals are
not subject to administrative review. While federal court review is
theoretically possible, few judges are willing to attempt to substitute their
judgment for that of USCIS officers in the absence of gross abuse of
discretion.
What are the Advantages of Adjustment of Status?
First, it does not require that the applicant go abroad at any time prior to
the grant of lawful permanent resident status. This is vitally important to
those applicants who have accumulated more than 180 days in “unlawful
status” and would otherwise be subject to a three year exclusion upon
their departure from the United States. For such people, who are also
eligible to file for adjustment of status under the “grandfathering” provision
of Section 245(i) of the Immigration and Nationality Act, this is their only
real option. Were they to go abroad to apply for an immigrant visa, they
would be subject to the three year exclusion.
The second principal advantage is that an applicant who requires a
waiver of exclusion may remain in the United States while the waiver is
being processed. As only a tiny handful of applicants ever require waivers,
this is not of great significance to the average applicant. It is, nonetheless,
a significant advantage to those who do require waivers.
What are the Disadvantages of Adjustment of Status?
There are several significant disadvantages to applying for AOS.
First, there is the delay involved in AOS processing. A person wishing to
apply for AOS today should be prepared to wait up to five years for an
adjudication. During this time, employer sponsored applicants may not
leave their employers or even accept promotions.
A second disadvantage is the discretionary decision making authority of
USCIS officers. Where one officer may see nothing, another may see
preconceived intent or presumed fraud. In such case, the officer has the
discretionary authority to deny the adjustment of status application. This is
very similar to the authority of consular officers deciding nonimmigrant
visas (consular officers do not have similar authority when they decide
immigrant visas).
A third and final disadvantage to AOS processing involves the legal
grounds for denying an application. Anything that would result in a denial
of an application for an immigrant visa at a consular post abroad
automatically requires a denial of an application for AOS in the United
States. In addition, there are several independent grounds that require the
denial of an AOS application, but not the denial of a consular immigrant
visa application.
One of the greatest and most persistent myths about AOS processing is
the belief that if an AOS application is denied, the applicant can easily
return to non-immigrant status and go on as if the AOS application had
never been made. This is simply not true. If a person is denied AOS
because of serious personal misconduct, they may well be taken into
custody immediately and held until they can be physically removed. Even
when this is not the case, and a denied applicant is not taken into
custody, he or she must leave the United States within a very short period
of time and will find it extremely difficult to ever return. It is the extremely
rare case in which a denied AOS applicant is allowed to remain in the U.
S. or easily re-enter.
May I apply for Work Permit or Employment Authorization while my
Adjustment of Status application is pending?
Applicants for adjustment of status may also ask for an Employment
Authorization Document (“EAD”). When approved and sent to the
applicant, an EAD permits the holder to work in the US. EAD cards are
valid for a period of one year, but may be renewed as many times as
necessary during the time that the applicant’s AOS application is pending.
May I apply for Advance Parole while my Adjustment of Status
application is pending?
Some applicants for AOS may also apply for and receive advance parole
(permission to travel abroad). The law provides that, with limited
exceptions, any AOS applicant who departs from the United States without
having already been granted advance parole is deemed to have
abandoned his or her AOS application. Some adjustment applicants
(holders of valid H or L visas) do not require advance parole to travel
abroad. Advance parole is granted for periods of one year at a time and
may be renewed as many times as necessary during the time the
adjustment of status application is pending. Current USCIS policy
provides that all adjustment applicants who are eligible for advance
parole shall be granted this benefit, irrespective of their reason for
traveling abroad.
