Adjustment of status refers to the process of becoming a lawful permanent resident. The most popular form of adjustment is family based. You as the beneficiary must have a qualifying relationship with a U.S. citizen or lawful permanent resident. There must also be a visa immediately available to you.
Eligibility in most cases requires that you have entered the U.S. lawfully. That is, you had a valid visa and were inspected at a point of entry upon arrival into the U.S. The most common family based categories or relationships are spousal and parent-child. If a U.S. citizen spouse or parent sponsors you, then you may qualify as an immediate relative for whom a visa is immediately available.
Adjustment of status is accomplished when the sponsor files an immediate relative petition (Form I-130) and an application for adjustment of status (Form I-485) with the immigration service (U.S.C.I.S. formerly the I.N.S.) for a beneficiary who is then currently residing in the U.S. The petition and application require various supporting documents and records to prove the relationship and to establish eligibility. The Forms I-130 and I-485 may be filed together as an ‘adjustment package’. This process is now taking approximately 6-8 months in most straightforward cases.
The adjustment package may also include such additional items as a request for employment authorization (Form I-765 or EAD) and permission from the immigration service to travel outside the U.S. while the adjustment is in pending (Form I-131 or advance parole.) The current employment authorization (EAD) processing time is approximately 6 weeks from the date the package is received by the U.S.C.I.S. Advance parole permission is currently taking approximately two (2) months and should be applied for at least 3 months in advance of travel times in ordinary cases.
If you have a pending adjustment application, then traveling outside of the U.S. requires advance parole permission before you can leave and legally reenter the U.S. If you have an adjustment application pending, then you may travel outside the U.S. only if you have not accrued any unlawful presence while residing in the U.S. If you have overstayed your authorized departure date stamped in your visa or Form I-94 - Arrival-Departure document, then you will have begun to accrue unlawful presence from that date forward.
If you have overstayed more then six (6) months but less than one year, then your unlawful presence will subject you to a three (3) year bar of exclusion from the U.S. should you leave the U.S. and then seek readmission. If you have overstayed more than one (1) year beyond your required departure date, then you will be subject to a ten (10) year bar of exclusion. This is true even if the U.S.C.I.S. has actually approved an advance parole document authorizing you to travel and reenter the U.S.
Finally, if you have a pending adjustment application, have traveled outside of the U.S. and then reentered, and if you have accrued more than 6 months of unlawful presence in the U.S., then you may be required to file a Hardship Waiver Form - 601 as part of your Form I-485 adjustment application in order to demonstrate extreme hardship to your qualifying U.S. citizen or permanent resident relative(s). This can be a very difficult burden to satisfy. If your hardships waiver is denied, then your application for adjustment of status to become a permanent resident will also be denied. However, if you do not leave the U.S. before your immediate relative petition is approved, then accrued unlawful presence bars of more than 6 months are considered waived.
Adjustment of status can also be applied for during removal (deportation) proceedings as a defense in those proceedings. You must qualify and be otherwise eligible as discussed above. You must have entered the U.S. legally unless you qualified for amnesty and timely filed for permanent residency (245i). When an application for adjustment is filed in removal proceedings, the Immigration Judge (I.J.) and not the immigration service will decide whether or not to grant your adjustment. Your attorney in the removal proceedings will prepare and file your adjustment package in immigration court. The attorney will then present evidence to the IJ at your individual calendar hearing in support of your eligibility. If the I.J. should approve your adjustment, then you will become a lawful permanent resident and the removal proceedings will be terminated.
If you are considering filing for permanent residency or are in removal proceedings, then it is in your best interest to consult with a qualified immigration attorney as soon as possible. For more information, please contact our law office.
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