Adjustment of Status is available to an applicant who is residing in the U.S. who wants to obtain their green card through marriage or employment, and who doesn’t need to return to their home country to apply. This cuts down travel expense and lengthy separation from family members. The AOS process does take longer from start to finish. Consular Processing is for applicant’s who are outside the U.S. and applying for a visa through an embassy/consulate in a foreign country. The benefit to this is that it has shorter processing time and lower risk of refusal. Unlike USCIS officers, Consular officers cannot issue a refusal based on discretion. This means they must have specific, factual evidence to issue the refusal.
The Visa Bulletin is a monthly publication that provides updated monthly numbers for a list of applicants and the “current” priority date for those applicants. The Visa Bulletin can be found here: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html
A priority date is a date a foreign national/alien initially expresses his/her intent to immigrate to the U.S. through the appropriate petition. These priority dates are different for Labor/Employment applications and for certain family-based cases and adjustment cases, they are listed as the date the case was received at USCIS.
Petitioners do not need to be residing in the United States to file Forms I-130, Petition for Alien Relative. Currently, I-130 petitions are filed at the USCIS Chicago Lockbox.
The National Visa Center (NVC) processes all approved immigrant visas (IV) after they are received from USCIS. The Department of Homeland Security (DHS) retains the applications until they are ready to be processed by a consular officer.
These bars were created under section 212(a)(9)(B) of the INA and they impose re-entry bars on immigrants who accrue unlawful presence in the U.S., leave the country, and want to re-enter lawfully. Generally, a person who enters the U.S. without inspection (undocumented), or who overstays their indicated period on their I-94, will be deemed to have unlawful presence.
If a person accrues more than 180 days of unlawful presence in the U.S., but less than one year, they are barred from re-entering the U.S. for a period of 3 years.
If a person accrues more than one year of unlawful presence, they will be barred for 10 years.
If a person has violated the terms of his or her admission (most commonly by overstaying or working without authorization) or has entered the U. S. without being admitted by an immigration officer (entered without inspection), he or she is barred from applying for adjustment of status and needs to return home to apply for an immigrant visa at the consular office abroad.
Immediate relatives of U. S citizen (spouses, children, parents) are exempted from these bars to adjustment, as they can apply for adjustment of status despite having overstayed or worked without authorization.
The Child Status Protection Act (CSPA) permits certain beneficiaries to retain classification as a “child”, even if he or she has reached the age of 21.
CSPA Eligibility Criteria:
Must be the beneficiary of a pending or approved visa petition on or after August 6, 2002.
The beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.
The child must “seek to acquire” permanent residence within 1 year of a visa becoming available. USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, or submit Form DS-230, Application for Immigrant Visa and Alien Registration from the Department of State. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever is later.
Individuals may be eligible to apply for permanent residence under CSPA after 1 year of a visa becoming available if all of the following are true:
They are a beneficiary of a visa petition that was approved prior to August 6, 2002
They had not received a final decision on an application for permanent residence based or immigrant visa on that visa petition prior to August 6, 2002
The visa became available on or after August 7, 2001
They met all of the other eligibility requirements for CSPA (see above)
Employment Authorization and Advanced Parole/Travel Permission are coupel of the ancillary benefits of Adjustment of Status.
Employment Authorization gives the foreign national permission to work in the U.S. legally while their adjustment of status application is pending with USCIS. In most cases, the Employment Authorization Card (EAD) is also issued with Advanced Parole (AP) in one combination card. These cards are typically issued from USCIS approximately 3-4 months after the biometrics appointment is completed, however, it can take longer. No employment authorization is available during Consular Processing cases.
Advanced Parole gives immigrants the permission to travel outside the U.S. while their adjustment of status applications are pending with USCIS.
The EAD/AP combination card is typically issued for one year and can be renewed if the adjustment of status application is taking longer to process.