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.