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Adjustment of Status

An “adjustment of status” (AOS) refers to the process by which an alien physically in the United States files a petition with U.S. Citizenship and Immigration Services (USCIS) to adjust his or her status from nonimmigrant to immigrant, i.e. permanent resident status. Being eligible to adjust status can be thought of as the difference between an alien successfully becoming a green card holder—or not.

Overview According to the Immigration and Nationality Act (INA), certain aliens who were inspected, admitted, or paroled into the United States and meet all of the requirements for a green card are permitted to apply for an AOS. The application is submitted via Form I-485.

In the not-so distant past, for employment-based adjustment of status applications, USCIS allowed an alien to file a Form I-485 only after his or her underlying immigration petition was approved. On July 31, 2002, however, USCIS’s predecessor agency, Immigration and Naturalization Service (INS), implemented a new rule allowing the concurrent filing of an I-485 and a Form I-140 petition, provided that a visa number is available to the beneficiary at the time of filing. Concurrent filing is typically associated with EB-1 and EB-2 beneficiaries.

An alien cannot simply choose to adjust his or her status. Instead, an alien must be eligible to do so. There is a host of requirements aliens must meet in order to submit an AOS petition.

Benefits As referenced above, applying for an AOS signifies that an alien has reached the final step in getting a green card. Once an AOS application is approved, the petitioning individual gains permanent resident status in the United States, meaning that he or she can live and work in the country indefinitely, and perhaps in the future become a naturalized U.S. citizen.

In addition, three significant benefits redound to AOS applicants. While an I-485 petition is pending, an applicant may simultaneously:

* Apply for advance parole, which allows an alien to travel abroad and re-enter the country without having to first obtain a visa.

* Apply for an employment authorization document (EAD), more commonly referred to as a “work permit,” which allows an alien to work for wages in the U.S.

* Remain legally in the United States without having to maintain whichever nonimmigrant status the alien had beforehand.

Outside the U.S.?

Aliens living abroad are not eligible for an AOS. Instead, they are required to go through consular processing for their immigrant visas at a U.S. embassy or consulate in their home countries or, alternatively, countries of foreign residence.

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