Adjustment of status is the process of applying for lawful permanent resident status in the US. Most applications for adjustment of status are considered in accordance with the provisions of 245 of the Immigration and Nationality Act (“Act”) and its implementing regulations found at 8 CFR 245. Applications for adjustment of status can only be filed by foreign nationals who are physically present in the US and who will process their applications through USCIS or before an Immigration Judge (“IJ”) in removal proceedings.
The alternative means through which a foreign national can process an application for status as a permanent resident is through “consular processing.” Consular processing involves the US Department of State and will require the foreign national to appear for an interview before a US Consular Office (“USCON”) abroad. As a general rule the applicant must appear before the USCON in the applicant’s native country.
To be eligible to apply for adjustment of status, an applicant must either have an immigrant visa available or otherwise be eligible to apply through some type of special legislation. Examples of special legislation that have been made available in the past few decades and which have provided pathways for certain foreign nationals to apply for adjustment of status include the Haitian Refugee Immigrant Fairness Act (“HRIFA”), the Nicaraguan and Central American Relief Act (“NACARA”), the Legal Immigrant Fairness Act (“LIFE”) and the Cuban Refugee Adjustment Act (“CAA”).
An application for adjustment of status is filed on a Form I-485, Application to Register Permanent Residence or Adjust Status. Most Forms I-485 require the applicant to submit a Form G-325, Biographical Information, a Form I-693, Medical Examination, and other supporting applications and documentation. Some applications for adjustment of status also require the applicant to submit a Form I-485, Supplement A, which permits the applicant to seek the benefits of 245(i) of the Act.
Section 245(i) is an often misunderstood provision of the Act which has confused foreign nationals, attorneys and immigration officers. Section 245(i) was initially enacted as a result of an upswing in applications being made by individuals who were ineligible to apply for adjustment of status in the US as a result of some problem which rendered the applicant ineligible to present a form I-485 here in the US. The answer was that the applicant could consular process their approved immigrant visa and this required returning to the USCON. The USCON’s in turn became so overwhelmed with applications that 245(i) was enacted in an effort to alleviate some of problems associated with applicants having to leave the US to process an application to become a resident alien.
Section 245(i) DOES NOT provide an applicant with a visa which will qualify the applicant to apply for adjustment of status. Rather, 245(i) allows individuals who have a means by which to obtain permanent resident status to apply for adjustment of status in the US without having to leave the country and apply through the USCON. An applicant’s eligibility for the benefits of 245(i) only means that the applicant can apply for adjustment of status in the US, it DOES NOT provide the alien with the means to qualify for adjustment of status. The applicant still needs to establish eligibility for adjustment of status just like everyone else, either through an immigrant visa being available or otherwise qualified under some type of special legislation.
Stated another way, 245(i) provides a procedure by which an applicant can submit a Form I-485 but does not provide the substance rendering the applicant eligible to submit an application. What is often misunderstood is that foreign nationals believe that 245(i) eligibility is the substance upon which a Form I-485 is based and that is not correct. An example may assist in understanding the difference. Let’s take the case of an applicant who entered the US without inspection and who is married to a US citizen.
If the applicant entered the US lawfully in most any status other than as a crewman (C/D nonimmigrant visa), the applicant would be eligible to apply for adjustment of status. Take that same applicant who entered the US without inspection. The applicant would only be eligible to submit a Form I-485 in the US is the applicant is eligible for the benefits of 245(i). If eligible for 245(i), the applicant would submit a Form I-485, Supplement A, and pay the associated $1000 penalty fee and could remain in the US to process the application. Without such eligibility the applicant would be required to return abroad and go through consular processing.
Every applicant for adjustment of status must establish that he is “not inadmissible” to the US. The wording of the Act is sometimes not as easy as it could be to understand, but that is why I have work to explain it all. Section 212(a) of the Act sets forth grounds upon which an applicant can be deemed ineligible for immigration status. These grounds include those relating to medical conditions, criminal activity, threats to public safety & national security, individuals who are deemed to be “public charges,” those who have violated the immigration laws through arriving in the US without being inspected or not being in possession of valid travel documents, those who have engaged in some type of immigration fraud or have falsely claimed to be a US citizen, those who have been deported or who have otherwise spent a period of “unlawful presence” in the US and a number of other highly technical reasons.
These grounds of inadmissibility made good sense when the laws are applied correctly. Any country is provided the deference to determine who will be welcomed and under what conditions a foreign national can seek admission. The US has set forth different grounds at 212(a) which openly define who is welcome and who is deemed “inadmissible.” Being deemed “inadmissible” does not always result in the applicant being barred, rather a system of “waivers” provides certain foreign nationals with a means by which to overcome grounds of inadmissible under certain conditions.
Most applications for adjustment of status will be scheduled for a personal interview before an Immigration Services Office (“ISO”). Most applicants for adjustment of status will be required to appear to have their “biometrics” captured and be required to provide a medical examination on Form I-693 to establish that there is no medical ground for which the applicant can be deemed ineligible to become a US resident alien. The purpose of all of this processing is to make sure that the applicant can properly establish eligibility for resident alien status and that if there is a ground of “inadmissibility” which applies that it be reviewed and addressed.
Most applications for adjustment of status CANNOT be appealed. Rather, most applications which are denied can be renewed before an IJ in removal proceedings. This does not mean that ALL applications CANNOT be appealed, but most Forms I-485 cannot be appealed within USCIS and the only way to seek review of a denied application is to be placed in removal proceedings before the US Immigration Court.
Our job as attorneys is to assist applicants in determining whether a Form I-485 can be granted and if so the forms that must be filed and the evidence that must be presented in support of the application. If there are problems with establishing eligibility, we figure out if a plan can be set forth to overcome any problems and then assist a client from the completion of the application through the interview before an ISO at a local USCIS Field Office. The applications themselves are not all that difficult to complete and generally ask for fairly basic information about the applicant. However, minor discrepancies on the application forms can create problems and it is our belief that an attorney’s presence at a personal interview is always in an applicant’s best interests.
If you believe that you may be eligible to apply for adjustment of status or have questions about your eligibility, please contact our office for an initial consultation to review your case and to determine your eligibility.