AOS
Adjustment of Status
Adjustment of status (“AOS”) is the term used to describe the process of seeking lawful permanent resident (green card holder) status in the U.S. without having to leave the country.
Individuals not in removal proceedings may apply for AOS through U.S. Citizenship and Immigration Services (“USCIS”), an agency within the U.S. Department of Homeland Security (“DHS”). Those who are in removal proceedings may apply for AOS before the Immigration Judge as a form of relief from removal, or, in some instances, may have the removal proceedings in Immigration Court terminated and apply for AOS through USCIS.
Requirements
Applicants for AOS must establish:
(1) A lawful entry into the U.S., which means inspection and admission or parole into the U.S. by an immigration officer;
(2) Eligibility to receive an immigrant visa;
(3) Admissibility to the U.S.; and
(4) Immediate availability of a visa.
It is also usually required that applicants for AOS maintain lawful status in the U.S., however, there are exceptions.
Exceptions to the requirement of maintaining lawful status
The following individuals are not required to maintain lawful status in order to adjust their status to that of lawful permanent resident within the U.S.:
(1) Immediate relatives of U.S. citizens;
(2) Foreign medical graduates;
(3) Special immigrant children;
(4) Former employees of international organizations and family members;
(5) Immigrants who have served honorably in the U.S. military; and
(6) Individuals who applied for permanent residence by filing a family-based visa petition or labor certification prior to April 30, 2001, irrespective of whether they entered the U.S. legally or illegally.
Immediate availability of a visa
This requirement can be satisfied in one of two ways. The first instance relates to immediate relatives of U.S. citizens, who always have an immediately available visa. The second instance refers to those individuals who qualify for one of the family- or employment-based visa preferences and have a current “priority date.”
“Priority Date”
The “priority date” is the date on which the family visa petition is filed with USCIS, or the date on which the labor certification is filed with the U.S. Department of Labor. With the exception of immediate relatives, all immigrant visa applicants must wait in line for a visa. Visas are processed in chronological order according to priority date. Thus, an individual must have a priority date that is currently at the front of the line in order to have an “immediately available” visa.
Removal
If an individual is placed in removal proceedings after filing a visa petition and is waiting for a visa to become immediately available, the Immigration Judge may continue the removal proceeding to permit USCIS time to adjudicate the visa petition. Such continuances may be granted upon motion to the court, as long as the Immigration Judge is satisfied that the individual is otherwise eligible for AOS. These motions are much more likely to be granted when it is likely that an immigrant visa will become immediately available in the foreseeable future.
Admissibility to the U.S. and waivers of inadmissibility
Many things can render an individual inadmissible to the U.S. However, individuals inadmissible on the following grounds may be eligible for a waiver of inadmissibility and, therefore, still eligible to apply for AOS. The grounds of inadmissibility that may be waived are:
(1) Mental or physical conditions and vaccination requirements;
(2) Commission of a crime involving moral turpitude;
(3) Multiple criminal convictions;
(4) Prostitution; and
(5) A single marijuana possession offense of 30 grams or less of marijuana.
In removal proceedings, the Immigration Judge determines whether the waiver will be granted. Sometimes, however, immigration attorneys are able to get the removal proceedings terminated in order to allow USCIS to determine eligibility for AOS. In these situations, USCIS, not the Immigration Judge, will determine whether the waiver should be granted.
Petitions filed before April 30, 2001
There is a provision of the immigration law that allows certain individuals to adjust status even if they entered the U.S. illegally or failed to maintain lawful status in the U.S.
This law allows illegal entrants and other foreign nationals that are “out of status” and who filed a family-based visa petition or labor certification prior to April 30, 2001 to adjust status within the U.S., as opposed to visa processing in their home country.
In addition to filing a visa petition or labor certification before April 30, 2001, applicants must also meet the following requirements to qualify for AOS under this special provision:
(1) Physical presence in the U.S. since December 21, 2000 if the visa petition or labor certification was filed after January 14, 1998;
(2) An approved visa petition;
(3) Eligibility to receive an immigrant visa and an immediately available immigrant visa;
(4) Admissibility as an immigrant; and
(5) Payment of a penalty sum in the amount of $1,000.
AOS for Battered Spouses and Children
Another provision of the immigration law allows battered spouses and children of U.S. citizens and lawful permanent residents to adjust status even if s/he entered the U.S. illegally. To qualify, an individual must be the victim of domestic violence at the hands of a U.S. citizen or lawful permanent resident spouse or parent.
