Frequently Asked Questions About Adjustment of Status
Q. What is adjustment of status?
A. Generally speaking, an adjustment of status is an application filed by an alien who is physically in the U.S. to adjust his or her status to immigrant status (permanent resident status) after his or her immigration petition has been approved. The USCIS also allows the concurrent filing of an I-485 adjustment of status application together with an I-140 immigration petition (EB-1, EB-2, and EB-3) if an immigrant visa number is available to the alien at the time of filing.
Q. An immigration petition has been approved on my behalf. I am now in the U.S., why do I still need to file an adjustment of status application?
A. You will need to file an adjustment of status if you want to become a legal permanent resident of the United States. The purpose of the immigrant petition is just to get an official determination that you qualify as an immigrant under a particular category and preference. It is the adjustment of status that ultimately changes or adjusts your status to that of a permanent resident.
Q. Do I need a “criminal record” certificate from my home country for adjustment of status?
A. No.
Q. My husband is a permanent resident. He filed an I-130 for me and it has been approved. I am currently in the U.S. May I apply for adjustment of status now?
A. Yes, you may apply for an adjustment of status if an immigrant visa is immediately available. If not, then you must wait until your priority date is earlier than the immigrant cut-off date. For more information on priority dates, please click here.
Q. I am now in an H-1B status and it will soon expire. I filed an I-485 adjustment of status based on an approved I-140. I have also applied for an EAD (I-765). I know I may work for any employer when I receive the EAD. Do I still need to extend my H-1B when I receive the EAD?
A. You might want to consider extending your H-1B because if your adjustment is denied and you did not extend your H-1B, you will no longer have legal status to stay and work in the United States.
Q. Where should I file my adjustment of status application?
A. If you are filing an adjustment based on a family immigrant petition, you will need to file at the USCIS Chicago Family Based Immigration processing center. However, for an adjustment of status based on an employment based immigration application, you will need to file at the USCIS Nebraska Service Center or Texas Service Center, depending on where you live.
Q. Why do I need an attorney’s assistance for adjustment of status? May I do it myself?
A. You may certainly try to apply for adjustment of status yourself. However, an experienced immigration attorney can help you prepare the forms and supporting documents with much less time involved and with much more accuracy. Furthermore, the attorney will be able to inform you of any potential problems in your particular case and how to deal with those problems. Lastly, the USCIS will usually send all documents and inquiries to your attorney. This is particularly important if you will be changing addresses in the future.
Q. My wife is a U.S. citizen and I am in the U.S. in a valid non-immigrant status. She will apply for a green card for me. Do we have to file an I-130 first and wait for its approval before we file an I-485 for adjustment of status?
A. No. You may file the I-130 and the I-485 simultaneously.
Q. I just got my green card. May my wife, who is currently in China, adjust her status to permanent resident?
A. No. Adjustment of status is for those who are physically in the U.S. However, if she is out of the country, then she can go through Consular Processing. If she enters the U.S. on some non-immigrant visa, then she may apply for adjustment of status after her immigrant visa number becomes available.
Q. I came to the U.S. under a Visa Waiver program. I am now married to a permanent resident. May I adjust my status in the U.S.?
A. Generally speaking, visa waiver entrants are not eligible to apply for an adjustment of status unless it is based on an immediate-relative petition that is filed within the 90-day authorized period.
Q. I came to the U.S. with a K (fiancé) visa. Within 90 days of my entry to the U.S., I married the person who invited me to the U.S. May I adjust my status to permanent resident?
A. Yes.
Q. I came to the U.S. with a K (fiancé) visa, but I married a person other than the one who sponsored my K visa. The person whom I married is also a U.S. citizen. May I adjust my status to permanent resident?
A. No. You must have married the person who petitioned for the K visa to be eligible for adjustment of status within 90 days of your entry into the U.S.
Q. I entered into the U.S. illegally. Now I am married to a U.S. citizen. May I adjust my status to permanent resident?
A. If you are eligible for 245(i), you may adjust your status. Without 245(i), you will not be able to adjust.
Q. I was a crewmember working on a ship and my visa type was D. I left my work and now am staying in the U.S. illegally. May I get protection from 245(i) if all other requirements are satisfied?
A. Yes.
Q. Same situation above, but if I missed the April 30, 2001 deadline, may I adjust my status by marrying a U.S. citizen?
A. No.
Q. My daughter came to the U.S. with me illegally and she is now 10 years old. We satisfy all the requirements of 245(i) and we are now ready to adjust our status. Must she pay the $1000 penalty?
A. No. This fee does not apply to a child under the age of 17.
Q. In the same situation above, should I pay the $1,000 penalty?
A. Yes.
Q. My husband who is a permanent resident filed an immigration petition for me a couple of years ago and the petition was approved. After approval, I got a B visa and I’m now in the U.S. May I adjust my status here in the U.S. when visa numbers are available?
A. You may adjust your status, but if you did not disclose the immigrant petition, the USCIS might not grant it. B visas are only for temporary stays in the U.S. The USCIS might conclude that you fraudulently obtained that B visa due to your preconceived intent to remain in the U.S. when you applied for the visa.
Q. I got a DWI ticket several years ago and I did not do anything to dismiss it. Will that prevent me from getting the green card now?
A. This will depend on whether or not you were actually convicted of the crime. A conviction for the DWI may bar you from adjustment.
Q. If my income is not sufficient to satisfy the requirement when I file I-485 adjustment of status based on an approved I-140, may I have somebody else promise to support me?
A. Yes.
Q. I have sufficient income to support myself. If I file the I-485 adjustment of status application based on an approved I-130, do I still need the relative who filed the I-130 for me to sign an affidavit of support (I-864)?
A. Yes. The person who filed the immigrant petition must sign an affidavit of support. However, if his income is insufficient, you may also get a co-sponsor to sign as well.
Q. Does my sponsor who will sign the affidavit of support for me have to be a U.S. citizen or permanent resident?
A. It depends on whether the adjustment is based on employment or family. If this is an employment-based adjustment, then the one who signs the affidavit does not have to be a U.S. citizen or permanent resident. However, if the adjustment is family-based, the signer must be a U.S. citizen or permanent resident.
Q. My husband’s National Interest Waiver petition (I-140) has been approved and now the visa is available, but my husband has just lost his job and he does not have any income now. May we adjust our status?
A. Yes, but you will need a sponsor who is willing to sign the affidavit of support for you and your husband. However, if you are working, you may simply get an employment letter yourself and sign the affidavit of support.
Q. I applied for Medicaid while I was a student. Does it prevent me from getting a green card now?
A. This alone will probably not prevent you from getting a green card, but it might be a factor when USCIS considers whether or not you will be a public charge on the state.
Q. I have been granted asylum status. I also filed the I-485 adjustment of status application while I was single. Now I’m married. May my spouse join me and file an I-485 adjustment of status too and get a green card with me at the same time?
A. No.
Q. My I-140 has been approved and I also filed I-485 adjustment of status when the visa for my category became available. Now I’m married. May my spouse join me and file an I-485 adjustment of status too and get a green card with me at the same time?
A. Yes.
Q. How long will I have to wait before my adjustment is approved?
A. It depends on whether your adjustment application is employment-based or family-based. For an employment-based case, it will be handled by a USCIS regional service center, which has jurisdiction over your state and several other states, and it may take from 6 months to 2 years. For a family-based case, it will be handled by a USCIS local office, which has jurisdiction over the place of your residence. It may well take 3 or 4 years for some offices.
Q. I am a U.S. citizen, but my wife is still in China. May I apply for an adjustment for her?
A. No. Only those who are currently in the U.S. may adjust their status.
Q. I move around a lot and I am afraid that the USCIS will send something to me at an address where I am no longer living. What can I do?
A. You should inform the USCIS of your new address, to ensure you receive all USCIS materials and because you are required to do so by law. If you have retained an attorney to handle your case, your attorney will be notified with the information the USCIS sends to you. This is another reason why people hire attorneys to handle their case.
Q. May I legally work while my adjustment is pending?
A. Yes, as long as you are granted employment authorization (EAD) during this time. You may apply for employment authorization at the same time that you file an adjustment of status application or at any time while the adjustment application is still pending.
Q. May I leave the country while my adjustment is pending?
A. Yes, but you must obtain a travel document (advance parole) before you leave the U.S. Otherwise, you will be considered to have abandoned your adjustment application, unless you have certain status, such as H or L.
Q. If I apply for a work permit or advance parole with my adjustment, how soon can I expect to get them?
A. Around 3 months for a work permit. It normally takes less time to process Advance Parole applications. For some local USCIS offices, it takes 30 days to obtain an Advance Parole.
Q. What is an affidavit of financial support? Do I need one?
A. An affidavit of support is a document by which the sponsor promises to provide financial support to the immigrant or non-immigrant alien when such alien is unable to support himself/herself. An affidavit of support is often required in an adjustment case. The purpose of this is to demonstrate that the applicant will not become a financial burden to the U.S. government once he/she becomes a permanent resident. Professional advice is recommended to determine whether an affidavit of support is needed for a particular case.
Q. I’m applying for family-based adjustment of status and I have a lot of money in the bank. Do I still need to get someone to sponsor me?
A. Yes. The person who filed the I-130 petition must sign an affidavit of support to sponsor you, no matter how much money you have.
Q. I’m applying for an employment-based adjustment of status, and I have a lot of money in the bank. Do I still need to get someone to sponsor me?
A. No, if the money you have is sufficient.
Q. For the affidavit of support, how much income is required to sponsor a family of four?
A. The figure varies each year. For more information go to. https.//www.uscis.gov/i-864
Q. If my sponsor’s income is not enough for the affidavit of support, what else can I do?
A. A co-sponsor will be necessary.
Q. My sponsor filed an affidavit of support on my behalf a year ago. However, my sponsor recently lost his job and my adjustment application is currently pending. Is this going to affect my adjustment?
A. Yes, you may need to add another sponsor who has sufficient income to sponsor your application. This can be accomplished by filing a supplement with the USCIS.
Q. I entered the U.S. illegally, but I am now married to a U.S. citizen. May I adjust my status?
A. No, you may not, unless you are eligible to claim protection under 245(i). For more information about 245(i), please click here.
Q. I am filing an employment-based adjustment of status application. May I pay the filing fees with a personal check?
A. Yes, because your case will be filed at an USCIS Service Center, which accepts personal checks.
Q. I am filing a family-based adjustment of status. May I pay the filing fees with a personal check?
A. No. The fee must be paid by money order or cashier’s check because your case will be filed at a local USCIS office, which only accepts money orders or cashier’s checks.
Q. It has been 2 years since my employment-based adjustment was filed and I still have not heard anything from the USCIS. What can I do to check the status of my application?
A. You may call or write to the USCIS for a status inquiry. The contact information is listed at the bottom left corner of your receipt notice.
Q. It has been 2 years since my family-based adjustment was filed and I still have not heard anything from the USCIS. What can I do to check the status of my application?
A. It is not unusual for a case of this type to take a long time. However, you can certainly make a status inquiry by visiting your local USCIS office, or contacting the USCIS by phone or mail.
Q. I entered on a B-2 visitor visa, but I have overstayed my visa for over 1 year. May I apply for adjustment of status through my employer?
A. No, you may not, unless you are eligible for the protection under 245(i). Please click here for more information about 245(i).
Q. I entered on a B-2 visitor visa, but I have overstayed my visa for over 1 year. However, I married a legal permanent resident. May I apply for adjustment of status?
A. No, assuming that you are not eligible for the protection under 245(i).
Q. I entered on a B-2 visitor visa, but I have overstayed my visa for over 1 year. However, I married a U.S. citizen. May I apply for adjustment of status?
A. Yes.
Q. I entered on an F-1 student visa and I want to apply for adjustment of status through my U.S. citizen sister. However, I have been working illegally. Do I have to mention my illegal employment on the immigration applications?
A. Yes, you must answer each question honestly.
Q. What can I do if my adjustment application is denied?
A. You may file an appeal or ask for reconsideration if you believe that the reason you were denied is not justifiable.
Q. What is the difference between an immigration petition and an adjustment of status?
A. An immigrant petition merely asks for a determination that an alien qualifies as an immigrant under a particular category and immigrant preference. For most classes of immigrants, the immigrant preference is important, as a limited number of aliens are allowed (available immigrant visas) to become permanent residents each year. An adjustment of status application asks to change the alien’s status to that of an immigrant (i.e. permanent resident), and cannot be filed if there are no available immigrant visas at a given time. Generally speaking, an adjustment of status application must be based on an approved immigration petition.
Q. What is the difference between consular processing and adjustment of status?
A. Consular processing is applicable to those who are outside the U.S., while the adjustment of status is available only to those who are inside the U.S.
Q. My husband is a U.S. citizen. We got married a year ago and he immediately helped me file for adjustment of status. However, he now wants a divorce. What does this mean for me?
A. If you have not obtained a permanent green card or a conditional green card before the divorce is finalized, your divorce will result in the failure of your immigration case.
Q. My U.S. citizen husband and I are legally separated. May I still adjust my status?
A. Yes.
Q. My employer filed an employment-based immigrant petition based on my qualifications as an outstanding researcher. The immigration petition was approved and I am ready to file for adjustment. However, I was wondering if I have to continue working for this employer?
A. Generally, an employment-based alien immigrant is not required to work for the petitioning employer until the employee obtains his permanent resident status. Once the employee obtains the green card, he is required to work for a reasonable period of time for the same employer. There is an exception for those who hold H-1B status. If their current employer is different from the one sponsoring their green card, they may switch to the green card employer beginning 180 days after they file their adjustment application. Thus, they may work for other employers before they obtain their permanent resident status without jeopardizing their green card.
Q. I was admitted to the U.S. under a K visa for fiancés a month ago, but we have not been married yet. Is there a time limit on when we have to get married?
A. Yes, in order to maintain a legal status, you must be married to the U.S. citizen fiancé who petitioned and brought you to the U.S. within 90 days after your entry to the U.S.
Q. I was admitted to the U.S. under a K visa; however, I did not marry my fiancé who petitioned for me. I ended up marrying another U.S. citizen instead. May I adjust my status?
A. No. You have to leave the U.S. and apply for an immigrant visa at a U.S. Consulate.
Q. I am a legal permanent resident. I want to petition for a family visa for my husband, but I realize that he will have to wait over four years until he is eligible to apply for adjustment. Since I am planning on getting my U.S. citizenship next year, should I just wait until then to help my husband apply for adjustment?
A. You can certainly do so since this may be faster. You may also file the immigration petition now as a permanent resident. Once you become a citizen, you may request your case be upgraded.
Q. What is a derivative beneficiary?
A. Typically, a derivative beneficiary is an immediate family member of the principal beneficiary of an approved immigration petition. A derivative beneficiary may apply for an immigrant visa or adjust his/her status to permanent resident if the principal beneficiary is eligible to apply or adjust. For example, if a man is eligible to adjust his status based on an approved immigration petition filed by his U.S. citizen sister, this man’s wife and minor children may also adjust their status in the U.S. The wife and the minor children are derivative beneficiaries.
Q. I just got an approved I-140 and am now eligible to apply for adjustment of status. May my wife and children apply with me?
A. Yes, if they are now in the U.S.
Q. I am applying with the Texas Service Center, but I have to move to California (which is in the jurisdiction of the Nebraska Service Center). What is going to happen to my application?
A. Your application stays at Texas Service Center.
Q. I just got an approved I-140 and am now eligible to apply for adjustment of status. May my parents and brothers and sisters apply with me?
A. No.
Q. I just got an approved I-140. May I apply for adjustment now?
A. If an immigrant visa is available to you (depending on what category you are in and your priority date), you may apply immediately. Otherwise, you must wait until your date comes.
Q. I just got an approved I-140. May I wait for a couple of years to file the adjustment application, or is there any expiration date for an approved I-140?
A. There is no expiration date for an approved I-140. You may wait as long as you wish to file your adjustment application, assuming you satisfy all other requirements for adjustment.
Q. I entered the U.S. on a J-1 visa and am now married to a U.S. citizen. May I adjust my status?
A. Yes, only if you are not subject to the 2-year residency requirement. If you are subject to such requirement, you are able to adjust your status after the requirement has been either effectively met or waived.
Q. Assuming I meet all the requirements for an adjustment of status, is it guaranteed that my adjustment will be approved?
A. No.
Q. I originally was in H-1B status, but I just recently filed for adjustment of status. What status am I in right now?
A. You are still in H-1B status, as long as it is valid. When H-1B runs out, you will automatically switch to I-485 pending status.
Q. I originally was in H-1B status, but I just recently filed for adjustment of status. Will I have to renew my H-1B if I am still waiting for my adjustment to get approved?
A. It is always wise to maintain a separate legal status while the adjustment application is pending because, in the unfortunate event that the adjustment application is denied, you will still have this separate legal status, instead of being illegal.
Q. I originally was in H-1B status, but I just recently filed for adjustment of status. I also received an Advance Parole when I filed for my adjustment. If I leave the country, will I lose my H-1B status?
A. Not necessarily. However, if you enter the U.S. with your Advance Parole document (instead of on an H-1B visa), you will lose your H-1B status.
Q. I originally was in H-1B status, but I just recently filed for adjustment of status. I also received an employment authorization when I filed for my adjustment. Am I now allowed to work for a different employer?
A. Yes. Such employment authorization allows you to work for any employer, but you will lose your H-1B status.
Q. My wife was in H-4 when she filed for adjustment. She also received employment authorization when she filed for adjustment. If she works, will I lose my H-1 status?
A. No.