Adjustment of status under § 245 of the Immigration and Naturalization Act (INA) is a program that allows several categories of nonimmigrants who were not in the United States legally or who were in the U.S. legally, but temporarily, to "adjust" their status to a person legally in the United States and admitted for permanent residence. This program ended in April 2001, but it is still available to nonimmigrants whose visa petition or application for labor certification was filed on or before April 30, 2001. For nonimmigrants whose visa materials were filed after January 1, 1998, and before April 30, 2001, they must also prove that they were in the U.S. on December 21, 2000.
Opportunity for Qualified Nonimmigrants to Remain in U.S. and Change Status
The adjustment of status program was designed to allow the qualifying nonimmigrants the opportunity to remain in the United States and change their status instead of having to travel back to their country of origin and apply at the U.S. Consulate there for an immigrant visa in order to re-enter the U.S. under a different status than when they left.
Qualifying Nonimmigrants
Nonimmigrants who meet the date requirements mentioned above, those who can take advantage of the adjustment of status provision, include nonimmigrants who have done the following:
- entered the United States without proper inspection by an Immigration and Naturalization Service (INS) official,
- worked in the United States without permission from INS,
- stayed in the U.S. longer than allowed by INS, and
- entered legally and through the proper immigration channels but failed to maintain lawful status.
Must File Application to Register Permanent Residence or Adjust Status
In order for an eligible nonimmigrant to adjust status, he or she must file Form I-485, Application to Register Permanent Residence or Adjust Status. The INS will check the nonimmigrant's fingerprints, require a medical exam and schedule an interview with an INS examiner. After the I-485 application is filed and before a decision is made, the nonimmigrant may apply for a work permit and may travel outside the United States when prior approval of travel plans are obtained from INS. Once a letter regarding adjustment of status is received, the nonimmigrant has the right to appeal if the answer is not favorable.
Groups Not Needing Benefits of § 245 to Adjust Status
Certain groups do not need the benefits of § 245 to adjust their status. These include the spouse or unmarried minor child of a U.S. citizen or the parent of a U.S. citizen at least 21 years of age if the he or she was inspected and lawfully admitted to the United States but subsequently overstayed his or her authorized admission or worked without permission. If a person on whose behalf a labor certification was filed is in unlawful status, they may adjust their status provided that the amount of time they were in unlawful status did not exceed 180 days.
Refugees and People Seeking Asylum in the U.S.
In addition, there remains an adjustment of status program for refugees and people seeking asylum in the United States. This adjustment of status program is provided for in § 209(b) of the INA. An asylee or refugee may apply for permanent resident status after he or she has been in the United States for a period of one year after asylum status was granted. To apply for this adjustment, the Form I-485 is used.
Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.
