An application for adjustment of status can allow individuals to obtain a green card (legal permanent residency) without leaving the United States. However, these individuals must maintain lawful status in the United States and be able to meet certain requirements.
Individuals who do not meet the requirements can still pursue a green card through consular processing.
What is AOS?
The AOS process allows certain foreign nationals within the United States to apply for lawful permanent resident status (also known as a green card) without leaving the country. The AOS process can be used for immigration based on family, employment or diversity lottery.
AOS applicants are considered to have “advanced” their immigrant visa cases once their petitions for green cards have been approved by USCIS and they have a current priority date. Priority dates are based on the annual quota for visas available in specific categories and countries.
It may be years after an immigrant visa petition is filed for a person before their priority date becomes current, and thus they are eligible to file for AOS with USCIS. During this time, they must still maintain their nonimmigrant visa status and continue to work in their fields. If they travel abroad, they must obtain a travel permit called an Advance Parole document from USCIS. Otherwise, they risk abandoning their AOS applications and forfeiting their priority date.
Requirements for AOS
Aliens must have an approved immigrant petition on their behalf in order to apply for an AOS. In addition, individuals seeking to file an AOS as the spouse or child of a U.S citizen must have an advance parole document in order to re-enter the United States after international travel (unless they are H-1B, L-1 or K-3 visa holders who can continue to work while their AOS is in process).
Individuals who overstayed on their visa or entered without a valid visa or through the Visa Waiver Program cannot use this route to become permanent residents. They must instead undergo immigrant visa processing at a U.S. consulate abroad.
Oftentimes, it takes an experienced immigration attorney to make sure that an AOS is filed correctly. This is because, even if an alien appears objectively eligible for an AOS and does not have any grounds of inadmissibility, USCIS can still deny the AOS application. This is because of negative discretionary factors such as unauthorized employment or failure to continuously maintain status.
Requirements for a Green Card
Green cards allow non-citizens to become lawful permanent residents of the United States. They can be obtained through family, employment or other pre-established pathways like refugee and asylum status or being a victim of certain qualifying crimes like human trafficking, domestic abuse, or a natural disaster. Green card holders are eligible for social security benefits, federal financial aid at school and in-state tuition rates at some universities.
The INA (Immigration and Nationality Act) outlines eligibility requirements for various categories of green cards. Most people obtain their green cards through their family. Close relatives include spouses, children under the age of 21, parents, and siblings. Spouses of U.S. citizens and lawful permanent residents are eligible for immediate, family-based green cards, while others have to expect years-long wait times.
Each year, 140,000 employment-based green cards are available. These are divided into preference categories, including EB-2 and EB-3. Many EB-2 and EB-3 cases require an employer to demonstrate that no minimally qualified U.S. workers are available through a labor certification process that includes the Department of Labor’s iCert system.
Requirements for a Waiver of Inadmissibility
If you are ruled inadmissible to the United States, you may still be eligible for a waiver of your inadmissibility. Waivers are available for many different reasons, including unlawful presence, criminal records, misrepresentation and marriage fraud. A qualified immigration attorney can help you understand the reasons why you are deemed inadmissible and can prepare an application to overcome your inadmissibility.
Most immigration waivers are based on extreme hardship to a qualifying relative. This can include financial hardship, mental or physical harm, loss of cultural ties and social stigma, and difficulty with language or religion.
There are several types of waivers, including the I-601A provisional waiver for those who have been in the United States illegally, and the I-601 permanent waiver based on unlawful presence. The requirements for each type of waiver are different, and an experienced attorney can help you understand which is the most appropriate to pursue. An experienced attorney can also help you appeal a decision rejecting your waiver or defend you during deportation proceedings.
