Adjustment of status is a process that permits certain people in the
United States to apply for lawful permanent resident ("green card") status
without having to go abroad. Not everyone qualifies for this procedure.
Those that do must apply with an office of the U.S. Immigration and
Naturalization Service ("USCIS") and all further processing will be done by
that agency.
Advantages of Adjustment of Status
Adjustment of status has two principal advantages:
First,
it does not require that the applicant go abroad at any time prior to the
grant of lawful permanent resident status. This is vitally important to
those applicants who have accumulated more than 180 days in "unlawful
status" and would otherwise be subject to a three year exclusion upon their
departure from the United States. For such people, who are also eligible to
file for adjustment of status under the "grandfathering" provision of
Section 245(i) of the Immigration and Nationality Act, this is their only
real option. Were they to go abroad to apply for an immigrant visa, they
would be subject to the three year exclusion.
The
second principal advantage is that an applicant who
requires a waiver of exclusion may remain in the United States while the
waiver is being processed. As only a tiny handful of applicants ever require
waivers, this is not of great significance to the average applicant. It is,
nonetheless, a significant advantage to those who do require waivers.
Disadvantages of Adjustment of Status
There
are several significant disadvantages to applying for AOS.
First, there is the delay involved in AOS processing. A person wishing to
apply for AOS today should be prepared to wait a minimum of five years for
an adjudication. During this time, employer sponsored applicants may not
leave their employers or even accept promotions.
A
second disadvantage is the discretionary decision making authority of
USCIS officers. Where one officer may see nothing, another may see
preconceived intent or presumed fraud. In such case, the officer has the
discretionary authority to deny the adjustment of status application. This
is very similar to the authority of consular officers deciding nonimmigrant
visas (consular officers do not have similar authority when they decide
immigrant visas).
A
third and final disadvantage to AOS processing involves the
legal grounds for denying an application. Anything that would result in a
denial of an application for an immigrant visa at a consular post abroad
automatically requires a denial of an application for AOS
in the United States. In addition, there are several independent grounds
that require the denial of an AOS application, but not the denial of a
consular immigrant visa application. For this reason, on a per capita basis,
denials of AOS applications were about fifteen times
greater than denials of consular immigrant visas during fiscal year 1998.
For the first three quarters of fiscal year 1999, the number of per capita
denials has grown to twenty five times greater.
One of
the greatest and most persistent myths about AOS processing
is the belief that if an AOS application is denied, the applicant can easily
return to non-immigrant status and go on as if the AOS application had never
been made. This is simply not true. If a person is denied AOS because of
serious personal misconduct, they may well be taken into custody immediately
and held until they can be physically removed. Even when this is not the
case, and a denied applicant is not taken into custody, he or she must leave
the United States within a very short period of time and will find it
extremely difficult to ever return. It is the extremely rare case in which a
denied AOS applicant is allowed to remain in the U.S. or easily re-enter.
Dependants
The
person who qualifies as an immigrant is know as the principal applicant. All
qualifying dependants of the principal applicant are entitled to apply for
AOS as well. A qualifying dependant is defined as the
spouse or unmarried child (under the age of 21) of the principal applicant.