Immigration through Adjustment of Immigrant Status

Note: Since April 30, 2001, you cannot qualify for 245(i) benefits, but you may be eligible if your visa qualification petition was previously filed. See the "Who is Eligible" section below.

Background

Our immigration laws allow qualified individuals to enter the United States as lawful permanent residents ("green card" holders) after they obtain immigrant visas from a consulate or embassy outside the United States or, for many immigrants already lawfully in the United States, through a process called "adjustment of status." If you entered the United States unlawfully, if you entered with permission but did not stay in lawful status, or if you worked without permission, you normally would have to leave the United States in order to apply for an immigrant visa. Special rules under section 245(i) may allow you to apply to adjust status without leaving the United States.

You might need section 245(i) if you:

Entered the U.S. without being inspected by an Immigration official.
Stayed in the U.S. longer than allowed by Immigration.
Entered the U.S. as a worker on an aircraft or ship (crewman).
Entered the U.S. as a "Transit Without Visa."
Failed to continuously maintain a lawful status since your entry into the US.
Worked in the U.S. without Immigration permission.
Entered as an "S" nonimmigrant (relates to witnesses about criminal or terrorism matters).
Are seeking a work-related visa and are out of status at the time of filing the application to adjust status (Form I-485).
Worked in the U.S. while being an "unauthorized alien."

NOTE: There are some groups that may not need to use section 245(i).

The spouse or unmarried minor child of a U.S. citizen or the parent of a U.S. citizen child at least 21 years of age if he/she was inspected and lawfully admitted to the United States, but subsequently overstayed his/her authorized admission or worked without permission, may apply for adjustment of status under section 245(a) and does not need to use section 245(i).
Certain persons who are eligible for certain employment-based immigrant visas and who were inspected and lawfully admitted to the United States, but have not violated their status or worked without permission for more than 180 days, do not have to apply for adjustment of status under section 245(i). They may be able to use section 245(k).

Who is Eligible?

(Note: This program ended April 2001, but certain applicants may still be eligible. See below.)

You are eligible if one of the reasons above prevent you from using the regular section 245 provision AND:

You are eligible to receive an immigrant visa and are admissible to the United States for permanent residence;
An immigrant visa is immediately available at the time your application is filed;
Your visa petition or application for labor certification that would qualify you to become an immigrant was filed on or before April 30, 2001, was approvable when filed; AND
If your petition or application was filed after January 1, 1998, then you must also prove that you were in the U.S. on December 21, 2000.

If eligible, you must pay the penalty fee of $1,000.

How Do I File the Application?

You must submit an adjustment of status package of forms (Form I-485 package) as well as Supplement A to Form I-485. Please carefully read the introductory page to the Form I-485 for complete details. These details are different depending on the visa qualifications that you have. The introductory page will also tell you where to file.

Will I Get a Work Permit?

Applicants who are inside the United States and have filed Form I-485 (Application to Register Permanent Residence or Adjust Status) are eligible to apply for a work permit while their case is pending. You should use Form I-765 to apply for a work permit.

You do not need to apply for a work permit once you are granted an immigrant visa or adjust to permanent resident status. As a legal permanent resident, you should receive a permanent resident card that will provide evidence that you have a right to live and work in the United States permanently.

Can I Travel Outside the U.S.?

If you are applying for adjustment to permanent resident status, you must receive advance permission to return to the United States if you are traveling outside the United States. This advance permission is called Advance Parole.

Note: However, if you have accrued more than 180 days of unlawful presence and then travel abroad, you will be barred from adjustment of status for either three years or 10 years, even if you were granted "Advance Parole," unless you are granted a hardship waiver. Generally, the three-year bar to admission applies to those who were unlawfully present in the United States for more than 180 days and leave the country, and the 10-year bar applies to those who were unlawfully present in the United States for one year or more and leave the country.

If you do not apply for Advance Parole before you leave the country, you will abandon your application with USCIS, and you may not be permitted to return to the United States.

How Can I Appeal?

If your application to adjust to permanent residence status is denied, you will receive a letter that will tell you why the application was denied. If you are not in a current, legal status, the process to remove you from the country will begin as soon as your application is denied. You will be allowed to have an immigration judge review the denial of your application during removal proceedings. During this review, USCIS must prove that the facts on your application were untruthful and that your application was properly denied. If the immigration judge decides to remove you from the country, you may appeal this decision. Generally, you may appeal within 33 days after the immigration judge decides to remove you from the country. After your appeal form and a required fee are processed, the appeal will be referred to the Board of Immigration Appeals in Washington, D.C.