Status Adjustment for Permanent Residency

Foreign nationals may obtain lawful permanent resident status (“green card”) by filing a status adjustment application (I-485 Form). Generally, USCIS must approve an immigrant visa petition (I-130 Form) filed by a family member or an employer (I-140 petition) before a foreign national may file an application to adjust status. When USCIS approves a petition, a foreign national becomes eligible for an immigrant visa. For some visa categories, a foreign national may need to wait until her or his priority date becomes current. A current priority date indicates an immigrant visa number’s availability.

General Requirements for Status Adjustment

Foreign nationals may generally apply for status adjustment if they are:

  • physically present in the United States,
  • eligible to receive an immigrant visa, and
  • an immigrant visa is immediately available when filing the I-485 Form.

Restrictions & Exemptions

Despite these general requirements, American law strictly regulates eligibility for obtaining a green card through adjustment. For example, a regulation (8 C.F.R. § 245.1) separates the limitations into two categories: restricted and ineligible foreign nationals. Here are a few (not all) examples when a person may encounter difficulties applying for a green card through adjustment:

  • a foreign national who entered the U.S. in transit without a visa,
  • flight crew,
  • a foreign national who did not receive inspection by an immigration officer followed by an admission or parole,
  • working in the U.S. without employment authorization,
  • unlawful immigration status when filing the I-485 Form,
  • J-1 beneficiary subject to a foreign residence requirement,
  • failing to continuously maintain a lawful status since entering the U.S.,
  • K-1 beneficiary who fails to marry the U.S. citizen within 90 days after entering the U.S., or
  • an S nonimmigrant unless a law enforcement agency requests adjustment of status.

This list does not include all the categories prohibiting USCIS from approving a green card. Although many restrictions limit eligibility for a green card, qualifying as an immediate relative or special immigrant may exempt a foreign national from certain limitations.

Foreign Nationals Who May Self-Petition

A deceased U.S. citizen’s widow or widower may file a petition requesting that USCIS classify her/him/they as an immediate relative. The widow or widower must satisfy certain criteria for USCIS to approve the petition.

Unfortunately, abuse occurs in a marital relationship. If a U.S. citizen or permanent resident’s spouse suffered abuse, the foreign national spouse may file a self-petition.