Some Individuals can Receive their Green Card while living in the US without leaving
Adjustment of Status is different from applying for a Green Card and attending an interview at a U.S. Consulate abroad. That process is called “Consulate Processing” and the individual applying cannot enter the U.S. until they are approved for a visa by a US Consulate in their home country. If eligible, intending immigrants can receive a Green Card and enter the U.S.
Being Able to Adjust Status
Individuals who have accrued more than 180 days of “unlawful presence” in the US may be barred from entering the U.S. or adjusting status for 3 years and those with over 1 year of unlawful presence can be barred from entering the U.S. or adjusting status for 10 years.
Applicants with unlawful presence can apply for a waiver to be able to leave the U.S. for an interview at a U.S. consulate in their home country and re-enter the U.S. after receiving a visa. This waiver is only available to individuals who have a qualifying U.S. Citizen or Permanent Resident family member who will face extreme hardship if they are not able to join them and live in the U.S. Those who are eligible to Adjust Status will not have to leave the U.S. for an interview at a Consulate abroad and can remain in the U.S. without a time bar for unlawful presence.
Eligible Categories Available for Applicants to Receive a Green Card Through Adjustment of Status
There are 7 categories under Section 245 of the Immigration and Nationality Act which allows individuals to Adjust Status, they are as follows:
- Those who are eligible for a Green Card through a U.S. employer, having received Asylum or Refugees status, a family member who is a Green Card holder or a U.S. Citizen.
- Those eligible under an approved I-130 or I-140 with a priority date, if any, that is current with an immediate visa available to them without any wait. There is an exception to having an approved I-130 for “Immediate Relatives” where the green card petition can be filed concurrently with the Adjustment of Status application.
- K-1 Fiancé visa recipients who enter the U.S. and marry their fiancé within 90 days can file for Adjustment of Status. (if you married late, see a lawyer to Adjust Status)
- Asylum and Refugee status recipients who waited 1 year after the grant of asylum or entering the U.S. as a refugee.
- Those NOT eligible to Adjust Status include individuals who entered the U.S. as a foreign National Crewman, in transit without a visa, or under the Visa Waiver Program (VWP). If you are an immediate relative of U.S. Citizen, entry on a VWP can be acceptable, talk to an attorney before proceeding.
- In almost all cases, you must have entered the U.S. with advance permission, inspected by Customs and Boarder Patrol, and have valid status in the U.S. Individuals who overstay their visa can Adjust Status only if they have a U.S. Citizen immediate relative (Parents, children, Spouse). If they entered on a valid visa and overstayed their visa, they can apply for Adjustment of Status to get a Green Card, even if they have unlawful presence.
Section 245(i) Adjustment of Status Special Cases
A special category of people who have lived in the U.S. for many years may be eligible to Adjust Status through Section 245(i). Applicants who fit into most of the above criteria’s, but cannot Adjust Status based on their illegal U.S. entry, can pay $1,000 penalty, and apply if the following are true:
- The applicant is the beneficiary of an immigration petition or labor certification filed on his behalf on or before April 30, 2001, and
- The immigration petition was filed between January 14, 1998 and April 30, 2001, and the applicant was physically present in the U.S. on December 21, 2000.