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Overview of Adjustment of Status

For many non-immigrants, the process of becoming an immigrant or U.S. citizen is a very daunting but rewarding task.  There are several ways to become a Lawful Permanent Resident (LPR) or U.S. Citizen, but right now, let us address just one:  Adjustment of Status.

Adjustment of Status, or AOS as it is frequently known as, is when the USCIS (United States Customs and Immigrations Service) alters the non-immigrant status of a foreign national (intending immigrant or beneficiary) present in the U.S., to immigrant status. The purpose of this is to obtain permanent resident status in the U.S.  There are several different reasons a foreign national can apply for adjustment of status.  Some of those being marriage to a U.S. citizen (the most common) or employment-based reasons.

In order to be eligible for Adjustment of Status, the intending immigrant must be present in the U.S. on the day the application is filed with the USCIS.  The foreign national is not allowed to leave the U.S. while their application is pending without the proper travel permissions (a valid visa allowing travel, or advance parole which will be discussed later), otherwise, their application will be deemed ‘abandoned’, meaning they will not be able to file the application.  A foreign national can only apply for adjustment of status if they have maintained a valid status on their visa since they came to the U.S.   There are, however exceptions to this:  Immediate relatives of U.S. citizens (such as spouses and unmarried children under 21 years of age) can adjust their status with the foreign national as derivative beneficiaries.  This means that they do not have to file separate petitions or separate adjustments applications.   An exception to the derivative status rule is when the foreign national seeks to adjust their status via marriage to a U.S. citizen.  Then no derivative status for immediate relatives apply.   If the foreign national’s children are under the age of 18 at the time that the marriage to a U.S. citizen occurs they can be sponsored by the U.S. citizen but must have separate petitions.  Along with the above requirements, the foreign national also must be able to prove that they were lawfully admitted or paroled into the U.S. after inspection by an immigrations officer.

The benefits to adjustment of status cases are that the processing times are shorter and visas are immediately available to the foreign national in the cases of marriage or some employment-based cases.  Also employment authorization may be obtained while the application is pending and can be renewed if it’s pending too long.  The foreign national can also travel outside the U.S. while the application is pending via the advance parole document.

If the foreign national is seeing adjustment of status in the U.S., they must be admissible and not subject to removal (deportation).  Some of the grounds for inadmissibility include: communicable diseases, drugs, terrorist activity, fraudulent or willful misrepresentation of a fact to obtain a visa or immigration benefit, among others.  Waivers to these grounds of inadmissibility can be made available to the foreign national under certain circumstances.

Next, if the USCIS deems the adjustment of status application approved, if warranted, there will be an interview (almost always in marriage cases and some in employment-based).  Attorneys can be present at these interviews and the purpose of them is to make sure that the immigrations officer finds their case and documents as credible.

We at HBM Law Offices have filed dozens of successful Adjustment of Status petitions.  To learn more about this process or discuss your eligibility, call us to schedule a complimentary consultation with our office.


Welcome to the HBM Law team!

Chey Vargas serves as the immigration paralegal at HBM Law Offices, LLC in West Des Moines, Iowa.  She is a first generation immigrant and appreciates the opportunity to help fellow immigrants under the guidance of Attorney Himani Bhardwaj. 

She is a native of Iowa and holds an Associate degree in Legal Studies from Kaplan University and is pursuing her Bachelor’s Degree in Paralegal Studies from Liberty University.  She serves as a mentor for other students in the program. 

Chey is customer service focused, diligent, and provides indispensable legal support to the law firm.  In her spare time, she enjoys spending time with her three children and husband.  

Chey Vargas headshot

Make sure to check out her LinkedIn Profile


FY 2015 H-1B Petition Results and What to Expect

USCIS received 172,500 petitions for FY2015 and more than 20,000 petitions filed towards the Masters quota cap. As predicted, with an improving economy, the demand for foreign talent has also increased.

USCIS conducted a computer-generated “lottery” to randomly select cap-subject cases received between April 1, 2014 and April 7, 2014.  The first lottery they ran was for the advanced degree quota to select 20,000 petitions. Next, a lottery was conducted combining the remaining advance degree cap-subject petitions and the regular cap-subject petitions to select a total of 65,000 petitions.

If your petition is selected in the advance degree lottery and was filed with premium processing, USCIS will issue electronic receipts to the attorney/law firm on file and assign a case number to the petition.  Lottery results for regular cap-subject petitions will be notified via mail.  If your petition is not selected in the lottery, USCIS will return the H-1B petitions with the filing fees to the petitioning employer.

How soon you will learn whether your petition was selected in the lottery?

A majority of the lottery results are notified early on but some petitions (also selected under the lottery) are set aside as “stand by” by USCIS.  The stand by petitions replace petitions that are denied, withdrawn, or found ineligible.  What this means is that your attorney could receive a notification that your H-1B petition was selected several weeks after the lottery has been conducted.

USCIS will first adjudicate H-1B petitions that elected and paid for premium processing set to begin no later than April 28th.  There are two service centers that review H-1B petitions:  California Service Center and Vermont Service Center. It is very important to stay in touch with the HR department of the petitioning employer to get the latest information on your petition.

This information is for general overview and should not be construed as legal advice.  Contact attorney Himani Bhardwaj of HBM Law Offices, LLC about specifics of H-1B process.


USCIS Reaches FY 2015 H-1B Cap

Release Date: April 07, 2014

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.

Before running a random selection process, USCIS will complete initial intake for all filings received during the filing period which ended today. Due to the high number of petitions, USCIS is not yet able to announce the date on which it will conduct the random selection process.

A computer-generated process will randomly select the number of petitions needed to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. USCIS will reject and return filing fees for all cap-subject petitions that are not selected, unless found to be a duplicate filing.

The agency will conduct the selection process for the advanced degree exemption first. All advanced degree petitions not selected will become part of the random selection process for the 65,000 limit.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;

• Change the terms of employment for current H-1B workers;

• Allow current H-1B workers to change employers; and

• Allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.


“Cap-Gap” Relief

Is your OPT expiring before your change of status to H-1B becomes effective on October 1 of the following fiscal year?  Will you fall out of status?  Is there an extension you can file?

Earlier an F-1 student’s OPT expiring before October 1 required the student to leave the US and return at the time his or her H-1B status became effective at the beginning of the next fiscal year on October 1. This created a hardship for a number of students and became a disincentive for U.S. employers to petition for F-1 students whose OPT’s expired during this “cap gap.”

On April 2008, Department of Homeland Security issued a regulation, commonly known as “cap-gap” relief that bridges the “gap” between the end of the OPT status until October 1 of the next fiscal year.  The cap-gap relief automatically extends the F-1 student’s status and the student’s OPT employment authorization to October 1 as long as the F-1 student’s EAD was valid when the H-1B change of status petition was filed.

Cap-gap relief prevents F-1 students from being unemployed during the cap-gap period and falling out of status.  However if the student does not have a valid EAD than the employment is not authorized during the cap-gap period and cap-gap relief cannot be utilized.

Provided that the F-1 student’s EAD is valid at time of H-1B filing, the F-1 student is eligible for cap-gap relief if the following three requirements are met:

  • The H-1B petition must have been timely filed with a request for change of status
  • The H-1B petition must request a start date of October 1 of the following fiscal year, and
  • The beneficiary did not violate the terms and conditions of his or her nonimmigrant status


  • How do I apply for the cap-gap relief?

The F-1 student should communicate with his or her school official (DSO) to obtain a new I-20 reflecting the extension of valid immigration status.  This extension also applies to any F-2 dependents of the F-1 student.

If processing times for H-1B petitions is very slow, USCIS may prioritize the adjudication of the H-1B change of status cases for F-1 cap-gap students because after September 30 they will be prohibited from continuing employment.

  • My H-1B petition was denied.  Can I still work on the cap-gap relief?

The cap-gap relief is immediately terminated upon rejection, denial, revocation, or withdrawal of the H-1B petition.  In this scenario the F-1 student enters the 60-day grace period.

  • Can I apply for a STEM Extension during cap-gap relief?

Yes, during the cap-gap period the F-1 student may apply for the 17-month STEM extension if eligible.  However, if the H-1B is withdrawn, revoked, or denied and the student has entered the 60-day grace period, he or she will no longer be eligible to apply for a STEM extension.

  • My H-1B petition was filed during the 60-day grace period.  Can I still apply for cap-gap relief?

No because F-1 student’s EAD must be valid at the time the H-1B is filed.  Cap-gap relief does not serve to retroactively grant employment authorization.

Please contact HBM Law Offices, LLC for an examination of your particular facts. 

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