Adjustment of Status (“AOS”) is the process by which a foreign national becomes a lawful permanent resident (“LPR”) of the United States. In order to apply for AOS, the applicant has to be physically present in the United States; AOS is different than Consular Processing in that respect.
Who can apply for AOS?
An individual can apply for AOS if the individual:
- Has an approved immigrant petition (i.e., Form I-130 for a spouse of a USC or LPR);
- Is applying for a “special immigrant juvenile petition” or “special immigrant military petition”;
- Is a derivative spouse or child of the principal AOS applicant, and both AOS applications are filed contemporaneously;
- Is a derivative spouse or child of the principal immigrant visa holder;
- If the derivative is residing abroad, the principal AOS applicant should file Form I-824 along with the principal’s Form I-485;
- If the derivative is residing in the U.S., s/he should file Form I-485, either along with the principal’s Form I-485, or any time after the principal’s Form I-485 has been approved;
- Has been admitted as a K-1 fiance of a U.S. citizen and the couple has married in the U.S. within the 90 day window allowed;
- Has been granted asylum to the United States and has been physically present in the U.S. for at least a year thereafter;
- Has been granted refugee status in the United States and has been physically present in the U.S. for at least a year after admission;
- Is a Cuban citizen or national (with exceptions);
- Has been continuously present in the U.S. since before January 1, 1972.
Who cannot apply for AOS?
Certain individuals are deemed to be “ineligible” to apply for AOS based on the Immigration & Nationality Act (“INA”), Section 245. You are ineligible to apply for AOS if:
- You entered the U.S. in transit without a visa;
- You entered the U.S. as a nonimmigrant crewman;
- You were not admitted or paroled following inspection by an immigration officer;
- Your authorized stay in the U.S. expired before your filing of Form I-485;
- You have engaged in unauthorized employment in the U.S. (employment without permission of USCIS);
- You failed to maintain your nonimmigrant status (with certain exceptions).
I am not sure if I am eligible to apply for AOS. How can I get more information?
If you are unsure, then you should consult with an immigration attorney. Applying for AOS is an expensive endeavor even without hiring an attorney. AOS can be straightforward, but it also can be extremely complicated. When in doubt, it is better to err on the side of safety and hire an immigration lawyer.