Adjustment of status is the process of applying for an immigrant visa (“green card”) inside the United States. How can an undocumented immigrant apply for adjustment of status?
It is necessary to define an undocumented immigrant as someone who is living and/or working in the United States and either entered illegally or is now out of status.
When an immigrant visa becomes available to an undocumented person (through a family relationship, an employer, etc.) the immigrant will need to identify the appropriate process to pursue in order to apply for the immigrant visa. The visa can be obtained either outside or inside the United States. There are two ways for an undocumented immigrant to apply for permanent residency in the United States and avoid having to return to their country of birth/citizenship.
Immediate Relatives Who Entered Legally
Immigration law allows certain people to apply for adjustment of status regardless of the fact that they are in the US illegally and/or have worked in the US without authorization, so long as the person can prove that they entered the US legally. These people are called “immediate relatives” and consist of:
- Spouses of US citizens
- Unmarried children under 21 years old of US citizens
- Parents of US citizens (citizen must be at least 21 years old)
An immediate relative who is applying for permanent residency through their US citizen spouse, parent, or child and who can prove that they were inspected an admitted at a port of entry by US immigration, has the right to apply for permanent residency by submitting Form I-485 inside the United States.
People Who Are Protected by 245(i)
For those people who entered legally, failed to maintain legal status, but are NOT immediate relatives, and for those people who entered illegally, there is still a possibility of applying for adjustment of status. Section 245(i) of the Immigration and Nationality Act allows such a person to adjust their status to permanent resident if they meet certain qualifications and pay a $1000 penalty fee.
A visa petition or labor certification must have been filed on your behalf on or before April 30, 2001. If the visa petition or labor certification was filed between January 15, 1998 and April 30, 2001, the applicant must prove that they were physically present in the United States on December 21, 2000. If the visa petition or labor certification was filed before January 15, 1998, the applicant does not have to prove that they were in the United States on any particular date.
The person does not have to be seeking an immigrant visa through the petition or labor certification filed before April 30, 2001. That petition or certification can be used as the means to qualify for adjustment of status under 245(i) while obtaining an immigrant visa through a petition filed many years later, for example, by a recently-acquired US citizen spouse.
If someone filed a visa petition or a labor certification for you prior to April 30, 2001, be sure to consult with an experienced immigration attorney in order to determine if you are protected under 245(i).
Not Everyone Who Qualifies to Apply for Adjustment of Status Will Qualify for Permanent Residency
Meeting the requirements to apply for adjustment of status in the United States is only part of the process. The applicant still needs to qualify for permanent residency. Immigration law identifies several things that will bar a person from obtaining permanent residency, including a person’s criminal, immigration, and medical history. It is extremely important that a person consult with an attorney experienced in immigration law before applying for any immigration benefit, including adjustment of status. The consequences of applying for something that you don’t qualify for could be severe, including deportation.