Login
Foreign Nationals may select either Adjustment of Status or Immigrant Visa Processing as their final step to securing an immigrant visa for permanent residence in the United States. Adjustment of status is when a foreign national seeking an immigrant visa applies through domestic agencies, typically while the individual is currently residing in the United States. Whereas immigrant visa processing entails applying for an immigrant visa at a United States embassy or consulate in a foreign country, typically when the foreign national seeking the visa is currently residing abroad. There are, however, many exceptions to this standard and sticking to this norm may not always result in the most favorable and expedient outcome
This is a personal decision that depends on individual circumstances.
Immigrant visa processing requires that the foreign national stay or return abroad for a minimum of two weeks, usually longer, to complete their medical examination and immigrant visa interview at their assigned consular post. If the foreign national will not be able to remain abroad for this period of time, it is recommended that the foreign national pursue adjustment of status instead. On the other hand, if the foreign national is planning to travel back to their country of origin anyways, it may make more sense for the applicant to pursue immigrant visa processing even if the individual is currently residing in the United States, however applicants considering this route should be warned that they may be required to remain abroad for a significant amount of time.
Adjustment of status, on the other hand, requires that the foreign national be physically present in the United States on the date that the application to adjust status is submitted. Furthermore, the adjustment of status route is more advisable if the foreign national has accumulated 180 days or more of unlawful presence in the United States, and thus would be barred for a significant period of time from applying for an immigrant visa if he/she left the United States to pursue immigrant visa processing abroad.
Potential applicants should be aware that processing times, in general, are shorter for immigrant visa processing than for adjustment of status, although applicants should always consult the Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) websites for projected processing times.
To be eligible for adjustment of status, the foreign national must have been either admitted or paroled into the United States following inspection from an immigration officer, regardless of whether arriving with a nonimmigrant visa, advance parole, or as a refugee.
Prior to submitting the immigrant visa petition, the foreign national will be asked to complete the Form I-140 [Immigrant Petition for Alien Worker]. On this form, the individual will be asked to indicate whether they would like to pursue immigrant visa processing or adjustment of status in the future, should their petition be approved. It is recommended that the foreign national, regardless of their ultimate decision, select immigrant visa processing at the outset.
On this form, if immigrant visa processing is selected at the outset, the foreign national may freely select to pursue either immigrant visa processing or adjustment of status when their priority date becomes current (more on this later).
Whereas if adjustment of status is selected at the outset, the foreign national may pursue adjustment of status or embark on a more difficult route to pursue immigrant visa processing. If the foreign national selects adjustment of status on their Form I-140, they then must also submit the Form I-824 [Application for Action on an Approved Application or Petition] through the Department of State and pursue this application in parallel.
Thus, if and when submitting the Form I-140, selecting immigrant visa processing at the outset is recommended to ensure greater flexibility.
Once the immigrant visa petition and Form I-140 have been submitted and approved, the applicant must wait for an immigrant visa to become available in order to pursue adjustment of status. As described below, immigrant visa availability varies depending on the applicant’s country of origin as well as their employment preference classification. As a result, a visa may be immediately available for some applicants, while others may have to wait months, even years, for a visa to become available for them due to numerical limitations on immigrant visas.
In determining the order of petition-approved applicants to receive an immigrant visa, a system of “priority dates” is used to effectively place an applicant in line. The foreign national’s priority date is the same as the filing receipt date of their immigrant visa petition, and it determines their place in the queue relative to other applicants charged to the same country and in the same preference level. The earlier their priority date, the sooner their priority date will be “current”, at which point the foreign national can begin the next steps for immigrant visa processing.
A category is regarded to be “current” when the availability of immigrant visas exceeds the present demand, and thus there is no waiting period. For example: Say there are 20,000 (EB-2) applicants worldwide when there are 40,040 (EB-2) immigrant visas available. Typically, the (EB-1), (EB-2), and (EB-3) preference levels remain current, except for individuals charged to China and India. When a country is oversubscribed (i.e. that the number of immigrant visa applicants exceeds the per-country limitation), a cut-off date is established and foreign nationals are placed on a visa waiting list based on their priority date.
The Application Final Action Dates Chart, published as part of the Visa Bulletin on the DOS website, is an up-to-date guide on which priority dates are current; foreign nationals for immigrant visas with priority dates that land before the date listed in the chart are considered current. If the foreign national’s priority date is current or soon to be current according to these resources, the applicant should begin to prepare their application to adjust status.
At the time of this publication, there is a limit of 140,000 available immigrant visas per fiscal year, regardless of whether conferred via immigrant visa processing or adjustment of status. Spouses and children of foreign nationals who seek immigrant visas in conjunction with the primary applicant (otherwise known as “derivative applicants”) equally count towards this number. The Department of State further stipulates that the number of immigrant visas approved in any quarter of the fiscal year may not exceed 27% of the annual quota, or maximum 37,800 immigrant visas conferred per quarter.
Applicants are also subject to a per-country limitation as well, where only seven percent of all immigrant visas, a maximum of 9,800 per year, may go to applicants from any given country. It should be noted that this is not the number of visas any given country is entitled to, but rather the absolute maximum their applicants may receive in any given year. Furthermore, applicants for immigrant visas are “charged” to the country in which they were born, not the country in which they hold citizenship, if different. The Department of State maintains that the current practice of per-country limitation is nondiscriminatory, but from an objective standpoint, applicants born in China, India, Mexico, and the Philippines face significantly longer wait times than applicants from other countries.
In addition to the worldwide quota and per-country limitation, the United States utilizes a ranked preference system for employment-based visas, with each receiving a set percentage of immigrant visas. The preference system exists as follows:
First preference (EB-1): Priority Workers —highly acclaimed individuals with extraordinary ability in their field, outstanding professors and researchers, international executives and managers (28.6% of visas allocated);
Second preference (EB-2): Professionals Holding Adv. Degrees and People with Outstanding Ability — applicants with graduate-level degrees, extended experience in their respective field, or outstanding ability in their profession (28.6% of visas allocated);
Third preference (EB-3): Skilled Workers, Professionals, and Other Workers — a very broad category that covers, for the most part, general applicants who do not qualify as (EB-1) or (EB-2) (28.6% of visas allocated);
Fourth preference (EB-4): Certain Specialized Immigrants — applicants who come from a set list of very specific and specialized backgrounds, there are many varieties of classified (EB-4) applicants, travel.state.gov should be consulted for the extensive list (7.1% of visas allocated);
Fifth preference (EB-5): Investors — applicants who have demonstrated interest and intent to invest in enterprises that will stimulate job creation in the United States (7.1% of visas allocated).
In a given quarter, if immigrant visas from one or more categories are underutilized, unused numbers can be transferred down from (E-1) to (E-2) or from (E-2) to (E-3), or transferred up from (E-4) and (E-5) to (E-1) and subsequently down to (E-2) and (E-3). As a result, higher demand in the lower preference categories ultimately affects the number of allocated visas in higher categories.
Once an immigrant visa has become available to the foreign national, it is time to prepare their application to adjust status. Each applicant for adjustment of status must submit their own complete application, even if applying together as a family unit. Families applying together should submit their applications together in a single envelope, as long as each application is complete and separated from the others. Each application submitted as part of the packet should be designated “Principal” and “Dependent” as appropriate.
The principal application should include the following:
Applicants should be aware that some forms require a filing fee to also be submitted. A full breakdown of fees can be found at this end of this article. Foreign nationals should submit a separate check for each applicant within their family unit.
Each applicant applying for adjustment of status, regardless of whether one is the primary applicant or a derivative applicant, must submit their own Form I-845.
In this section, foreign nationals should be prepared to share their full address, date of birth, country of origin, country of citizenship, current immigration status, present I-94 card number, and most recent arrival date at a United States port of entry.
The applicant should check Box A if they are the primary applicant. The applicant should check Box B if they are a derivative applicant (e.g. spouse or unmarried child under the age of 21).
In Part A, the foreign national should include their place of birth, occupation, background on their parents, most recent port of entry to the United States, present immigration status, and visa information. The foreign national will be asked to include their visa number — which is the eight-digit number in red found on the lower left of the visa stamp. Furthermore, the applicant should only check “yes” to the question of whether the applicant had previously applied for permanent resident status if and only if they have previously filed the I-845.
In Part B, the foreign national must present information regarding their current spouse and children, if applicable. The applicant should include information regarding their spouse and any children regardless of whether these individuals are simultaneously applying for immigrant visas, residing abroad and not seeking immigrant visas, or already are United States citizens. If applying as a family unit, each spouse must list the other, and all parents must list their children. Applicants who are children applying to adjust status along with their parents should indicate “none” in this section of the form.
In Part C, the foreign national will be asked to declare any membership or affiliation, past and present, with any kind of organization, association, club, fund, party, society, and foundation. The applicant must share the type of organization and its name, as well as the duration and extent of their involvement. The first section of Part C is not required for children under 14. All applicants including children, however, should take great care in completing the second section of Part C, as it covers potential grounds for inadmissibility.
If the foreign national has a disability and/or impairment and would like to request any kind of accommodation, then the applicant should check “yes”. If “yes” is selected, the applicant should disclose the nature of their disability and/or impairment.
The foreign national must sign and date the form in black ink. For children under 14, parents may sign for them. Furthermore, if the applicant used a translator to complete the document, the translator must also sign the document and provide their contact information.
Form G-325A provides supplementary biographical information to Form I-485. The responses provided on Form G-325A will be compared to the responses on Form I-485 as well as other documentation provided during the adjustment of status application process. If there are any discrepancies found, the USCIS officer will issue a request for information or may deny the application outright.
Form G-325A must be completed by all applicants between 14 and 79 years of age. The foreign national’s biographic information such as parentage, marriage history, residential history and employment history will be requested.
In the “All Other Names Used” section, foreign nationals should list all aliases, maiden names, and/or married names.
In the “Applicant’s Residence for the Past Five Years” section, foreign nationals should list every street address, city, provence/state, country, and duration of residence, in reverse chronological order with the most recent address first.
In the “Applicant’s Employment for the Past Five Years” section, foreign nationals should list the full names and addresses (if known) of all current and past employers, again in reverse chronological order with the most recent or current employer first. If the address is not known, the foreign national should list, at the very minimum, the country and city in which their past employer is located.
The most common error when completing Form G-325A is the failure on the part of the foreign national to include any temporary housing addresses. If the foreign national plans to reside at a relative or friend’s house, or even in an extended stay hotel, before submitting their application to adjust status (aside for shorter term stays of a week or less), they should include this address on their Form G-325A.
Form I-601 is only necessary to complete if the foreign national would like to request a waiver of grounds of inadmissibility. There are several kinds of waivers that applicants may file.
If applicants are seeking a medical waiver, they should first know that there will not be a waiver made available for those who abuse drugs and suffer from addiction. Through the medical waiver, foreign nationals are entitled to make the argument that adhering to the vaccination requirements would be contrary to their religious or moral convictions. If an applicant seeks to make this claim, they must be opposed to vaccinations in any form (not just a single vaccination that they wish not to take), their opposition must be rooted in religious or moral convictions, and their religious and/or moral convictions must be genuine. Furthermore, if an applicant has a disease that would otherwise deem them inadmissible, but they are coming to the United States to seek treatment for the respective disease, a medical waiver may also be filed. In this case, the applicant must include proof that arrangements for treatment have been made and an argument for why the applicant must seek treatment in the United States and otherwise would not be able to abroad, as well as specifically who will oversee this treatment and where, and the ability of the applicant or their family to finance this treatment.
For criminal waivers, waivers are available for crimes involving moral turpitude as well as controlled substance violations. If the applicant wishes to pursue a criminal waiver, they should include original or certified copies of any and all court orders, statements, dispositions, and police records. These documents should be included the adjustment of status filing along with Form I-601 and brought to the interview. In the Form I-601, the applicant should further provide a designation of each crime, the date and place of its conviction, and the sentence determined by the court. Waivers are unavailable for criminal convictions of murder or acts that involve torture, or convictions of intent to commit murder and/or torture.
Applicants who would otherwise be considered inadmissible due to their affiliation with a Communist or other totalitarian party may also seek a waiver. Foreign nationals must include a written statement outlining the extent of their involvement with the organization, including the period of their membership, whether the foreign national held a role in the organization, and whether their membership was voluntary or involuntary. If applicable, applicants should articulate in this statement the degree to which involvement in this organization was voluntary/involuntary (i.e. the degree to which participation affected the applicant and their family’s safety, wellbeing, job stability, access to resources and education, etc.).
Form G-28 is completed if the foreign national wishes to select a legal representative to handle their application process. This legal representative must be accredited by the Board of Immigration Appeals (BIA), and will sign Form G-28 along with the foreign national. It will then be the responsibility of the legal representative to file the form on behalf of the foreign national with the USCIS.
Foreign nationals should be careful to note that with each type of application submitted to the USCIS for consideration, a Form G-28 should be included (if the foreign national wishes to select a legal representative to handle their application). For example, if the foreign national is submitting an application to adjust status as well as an application for advance parole and employment authorization, then they should submit three copies of Form G-28.
As listed above, foreign nationals seeking adjustment of status must include a copy of the approval notice of their immigrant visa petition in their filing. If the approval notice was never received, applicants may file a Form I-824 to request appropriate documentation. In this situation, applicants may also submit a print-out from the Case Status online system.
Applicants are required to submit copies of the biographic page of their passport, as well as each page that was used for admission to the United States. While not required, it is recommended that applicants copy every page of their passport to ensure that no relevant pages are missed. While copying pages, the I-94 card should be temporarily removed.
The verification of employment letter should be on the appropriate employer’s letterhead. The letter should not only provide evidence of employment, but verify that the job granted to the applicant will still be available once the adjustment of status process has been completed successfully. The letter must also state the job title and proposed salary for the foreign national. In their adjustment of status filing, foreign nationals can either include a copy of the I-140 letter of support provided by the employer, or request a new letter. If the letter of support provided for the applicant’s Form I-140 is over a year old, the applicant should seek a new letter to verify that the job offer will still be valid once the applicant has successfully completed the process for adjustment of status.
Birth certificates must be submitted for every applicant and must adhere to the following criteria: be issued by the proper authority from the applicant’s country of birth, be registered in a timely manner, designate the date and place of birth, and designate the names of both parents (if known). If it will take a significant period of time to acquire the applicant’s birth certificate, as processing times for some countries vary significantly, the individual should be aware whether this will impact their eligibility, as waiting a significant period of time may cause their nonimmigrant status to expire, rendering them ineligible for adjustment of status. If this is the case, it is better to submit the otherwise complete filing for adjustment of status without the birth certificate. If a birth certificate is unavailable for an applicant, specifically if the applicant was born in a rural area, then two affidavits from either parents or close family relatives, who were no younger than thirteen years old at the time of applicant’s birth, that confirm the place and day of birth may be submitted in the place of a formal birth certificate.
Any and all marriage certificates should be submitted, including marriage certificates for previous marriages. If a marriage certificate for a previous marriage is submitted, the applicant should also include the relevant divorce decree, annulment papers, or death certificate of their spouse. If a single parent is applying for adjustment of status along with their child, and the parent shares custody of the child with another parent who is remaining abroad, the applicant should include a notarized statement from the parent not seeking an immigrant visa that permits their child to adjust status.
Every principal and derivative applicant regardless of age must schedule and complete a medical examination prior to filing for adjustment of status. The medical examination must be conducted by a previously approved physician, and a list of approved physicians can be found on the USCIS website. In presenting their findings of the medical examination, which includes the vaccination history of the applicant, the physician should complete the Form I-693 and include an original signature (as opposed to a signature stamp or online signature). If the physician does not provide a legitimate, original signature, the medical examination will not be accepted. Since the medical examination is to be sealed and delivered to USCIS without being opened by the foreign national, the applicant may not be aware that the physician may have failed to complete the Form I-693. Therefore, it is recommended that the foreign national brings a copy of the printed Form I-693 to the medical examination and present it to the presiding physician to help ensure that the form is properly completed and the adjustment of status process will not be unnecessarily delayed.
Furthermore, the medical examination must be completed within a year prior to the adjustment of status filing date. The applicant is not required to submit the sealed medical examination in their original adjustment of status of filing. If the applicant chooses to not include a sealed medical examination in their original adjustment of status filing, the USCIS will reach out to the foreign national and request the sealed examination when they are ready to adjudicate your case. As imagined, this creates a delay, therefore if an applicant is seeking the most expedient route to successful adjustment of status, it is advised they include the sealed medical examination for each applicant in the original filing.
If the foreign national wishes to travel abroad once they have filed their adjustment of status of application, they must first apply for advance parole while still in the United States. To do so, the applicant must submit Form I-131 [Application for Travel Document] via the Lockbox system described in Step 3. If the applicant leaves the United States after they submitted an adjustment of status application without first applying for advance parole, it will be determined that the foreign national abandoned their application to adjust status and will not be permitted to continue the application process. Furthermore, if the foreign national will no longer have underlying nonimmigrant status after submitting their application to adjust status, or if the foreign national holds nonimmigrant status other than H-1 or L-1, the applicant should not travel abroad without receiving advance parole, as they will not have a valid visa with which to return to the United States.
It typically takes from 60 to 90 days after filing to hear back about an advance parole decision. The applicant is encouraged to check the status of their application on the USCIS, but is advised to not contact the USCIS in regards to their advance parole application unless it has been over 90 days since filing. In select circumstances, applicants may request expedited processing of their advanced parole application. These circumstances include: severe financial loss to a company or person, emergency situations, humanitarian purposes, attendance to a nonprofit organization who seeks to further the interests of the United States, or Department of Defense or National Interest situation (authorization must come from the appropriate government entity in these cases).
If the foreign national wishes to work in the United States while waiting for their application of status to be processed, they must apply for an Employment Authorization Document. To request an Employment Authorization Document, the applicant must complete Form I-765 [Application for Employment Authorization]. For an Employment Authorization Document to be granted, the foreign national must have already applied for adjustment of status and should include a copy of their adjustment of status application receipt.
Upon successful approval, the foreign national is typically authorized to work for a period of a year. Employment Authorization Documents may also be renewed for an additional year.
Occasionally, foreign nationals may receive authorization for two years if they have applied for adjustment of status but there is not yet a visa available. If there is a visa available for the applicant, then they will only receive an Employment Authorization Document valid for a single year.
If the foreign national is denied, they may apply for an Employment Authorization Document in another category or file a motion for their claim to be reconsidered.
Once the applicant has fully prepared their application for adjustment of status per the list of documents above, the foreign national is ready to submit. Applications for adjustment of status are submitted to the appropriate USCIS Lockbox as outlined on the USCIS website.
For applicants who have already had the Form I-140 filed on their behalf and have received notice that the form is pending or approved (and thus are submitting their adjustment of status application along with their copy of Form I-797), the USCIS Lockbox to which they should submit their application depends on their current state of residence within the United States.
If the applicant has already submitted Form I-140 and currently resides in Alaska, Arizona, California, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, Guam, or the Northern Mariana Islands, the foreign national must deliver their application to the Phoenix Lockbox.
If the applicant has already submitted Form I-140 and currently resides in Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Oklahoma, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, or West Virginia, the foreign national must deliver their application to the Dallas Lockbox.
If the applicant is filing their adjustment of status application concurrently with the Form I-140, the foreign national must deliver their application to the Dallas Lockbox, regardless of their residence in the United States. The respective Lockbox addresses can be found below:
USCIS Dallas Lockbox
USCIS Phoenix Lockbox
Along with receipt notice for the adjustment of status application, the USCIS will send the applicant notice of a biometrics appointment. The foreign national will be requested to attend an appointment at a designated Application Support Center to provide fingerprints and a photograph. Biometrics are needed for both the application to adjust status as well as the application for an Employment Authorization Document, however the applicant should only be scheduled for one biometrics appointment. Typically, members of a family applying together will be scheduled for concurrent appointments, although only applicants between the ages of 14 and 79 are required to provide biometrics. Applicants should be careful to either attend the biometrics appointment as requested or reschedule, as failure to attend the appointment may be considered abandoning the application to adjust status.
The biometrics provided will then be used to conduct a security check on the applicant. If the applicant’s fingerprints are run through the FBI database twice and both times were not identified in the database, then the applicant is given the greenlight to move forward in the adjustment of status process. If the applicant’s fingerprints are identified in the FBI database, their case will be flagged for an interview. The FBI further conducts a name check to determine whether the foreign national has been investigated by any of more than a dozen domestic agencies.
Typically, employment-based applicants for adjustment of status are not required to attend an interview. The following reasons, however, may require the foreign national to have an interview in order to progress with the adjustment of status progress: USCIS needs to confirm applicant identity or validate legal status, applicant entered the United States without proper inspection by immigration officer, potential criminal inadmissibility or national security concerns, fraud concerns, applicant’s fingerprints were either found in the FBI database or rejected (improper biometrics taken), or the applicant has a Class A medical condition. The USCIS may also request an interview if it is determined that the case needs extra attention, specifically if the proposed employment is inconsistent with the foreign national’s education and work experience, the foreign national is represented by a suspicious attorney, or the foreign national departed the United States while the adjustment of status application was pending.
The interview may be recorded by video. During the interview, the officer will review the
Applicant’s answers to Form I-845 to verify that responses match. If the officer determines that additional information is necessary to properly adjudicate the case, the officer will outline the procedure for submitting additional documentation. The officer will communicate whether the application will be approved, as well as the basis for this decision.
Applicants should be notified by mail of their application result. If your application was approved — congratulations! — your Permanent Resident Card will be mailed to the address you provided on Form I-845. If your application was denied, the grounds for your denial will be articulated in the mailed notice. Applicants are eligible to file a motion to reopen or reconsider a denied application for adjustment of status.
Foreign nationals whose applications are denied may be subject to removal proceedings if they have not maintained lawful nonimmigrant status throughout the adjustment of status application process. Applicants who still have lawful nonimmigrant status but were denied due to criminal grounds of inadmissibility may also be subject to removal proceedings.