Adjustment of status is a process that allows individuals who are already in the United States to apply for lawful permanent resident status, commonly known as a green card. To be eligible for adjustment of status, an individual must, in general, meet the following requirements as per Section 245(a) of the Immigration and Nationality Act:
The applicant must have been
- Inspected and admitted into the US; or
- Inspected and paroled into the US.
Proof of inspection or entry is essential to prove that an individual entered the United States legally, as opposed to sneaking in through the border. Such evidence can be in the form of an Customs and Border Protection admission stamp in a passport, a Form I-94 Arrival/Departure Record (which can be found on the cbp.gov website), or other documentation demonstrating legal entry into the United States, in addition to a visa or other document authoring entry into the US.
Without proof of inspection or entry, an individual attempting to file for adjustment of status may run into substantial legal obstacles and deemed ineligible. This often happens to individuals who cross the border without any legal documents. Unless such individuals are grandfathered under an older section of the law, Section 245i (which expired April 30, 2001), or covered under some other legal exception, they are generally out of luck and must explore whether they are eligible for consular processing, which presents a whole other set of challenges including but not limited to whether departure from the United States will trigger the three- or ten-year unlawful presence bar. If an unlawful presence bar will be triggered, such people will need to discuss whether they qualify for an I-601A or I-601 waiver.
Keep in mind that this general rule does not apply to all situations. For example, someone who enters illegally but then applies for asylum and then receives a grant of asylum may still be eligible to adjust status. Similarly, someone who enters without inspection but qualifies and is approved for a U visa may potentially qualify to apply for a green card inside the US notwithstanding the initial lack of inspection. There are also situations where individuals may not have been formally admitted but paroled into the US. Under Section 245a, parole may qualify as a form of entry for purposes of adjustment of status. Obviously, every situation is different and must be thoroughly discussed with a qualified immigration attorney.
If you have entered the United States under questionable circumstances and are now considering applying for permanent residence inside the US, it is critical to consult with an immigration lawyer to determine whether you qualify for adjustment, and if so, what potential pitfalls or legal issues may arise during the course of your case. For more help or information about eligibility requirements, please contact our office.