Adjustment of status is a process by which foreign nationals already living in the U.S. may apply for Lawful Permanent Resident status.

This status is normally applied for by someone in the U.S. illegally for several reasons, including having overstayed their visa. Adjustment of status permits individuals to apply for a green card without returning to their country of origin and restarting the residency application process.

Who Is Eligible for Adjustment of Status?

There are numerous categories of eligible persons to apply for adjustment status. Some of these categories are:

  • Someone who came to the U.S. on a work visa and is being sponsored for a green card;
  • Someone who came to the U.S. with a visa to visit their fiancé and who married their fiancé before their visa expired; and
  • Someone who obtained asylum in the U.S.

Who Is Ineligible for Adjustment of Status?

The following are some of the classes of ineligible people:

  • Someone who entered the U.S., in transit, without a visa;
  • Someone who entered the U.S. without being checked and admitted by an immigration officer;
  • Someone who entered on a visa waiver (from a country that has a visa waiver agreement with the U.S.); or
  • Someone who has worked in the U.S. illegally.

In some circumstances, even if a person falls into one of the ineligibility classifications, they will still be eligible to apply for an adjustment of status because of their relationship to someone in the U.S. For instance, a person who has an immediate relative who is a U.S. citizen can still be eligible.

How Can I Apply for an Adjustment of Status?

Those wishing to apply must fill out the proper form, I-485. Other forms and documentation will likely be needed, including a medical exam certificate, passport-style color photos, and any required fees. The applicant must also deliver proof of their eligibility for permanent resident status, for instance, the certificate from their marriage to a U.S. citizen.

What Is an Employment Visa?

U.S. immigration law defines an immigrant visa as a document that allows a foreign national to enter the U.S. and eventually apply for legal permanent residency. Legal permanent residents are typically granted the same privileges as natural-born citizens, such as the right to work in the country and the right to pursue citizenship.

Immigrant visas can be thought of as three broad categories. Generally speaking, a person pursuing an immigrant visa must find a person or organization who will petition them to relocate to the U.S. Immigrant visas are usually categorized according to the applicant’s relationship with their petitioner.

An example of this would be the following types of immigrant visa categories:

  • Family-Based: Petitioners may include immediate relatives, close family members, fiancés, and other individuals who are ready to help the applicant receive their visa;
  • Employment-Based: Employers may act as a petitioner to petition a worker to relocate permanently to the U.S. This may also be known as employment sponsorship; and
  • Special Immigrants: An example of special immigrants as employees would be religious workers or applicants from selected countries.

It is essential to mention that work certification may be required for some employment-based immigration visas. This means that an employer will need to verify that the individual is filling a legitimate employment need.

Immigrant visas are primarily characterized by the applicant’s general intent to relocate permanently to the United States. This is in distinction to other types of non-immigrant visas in which the applicant only plans to stay temporarily, such as student visas or temporary work visas. An applicant for non-immigrant status must demonstrate that they do not plan to stay or live permanently in the United States.

Employment visas permit citizens of foreign countries to work in the U.S. for a temporary time. Typically, a U.S. employer must sponsor the worker for relocation to the U.S. for a limited period of employment. Employment visas are occasionally referred to as work visas or work permits. Further, the number of employment visas issued each year is capped by the U.S. government.

Some of the visas that need employment sponsorship may also need work certification. This process confirms that the employer needs that specific employee for the job and cannot find similarly qualified workers from the pool of U.S. laborers. An employment-based visa can lead to lawful permanent resident status for the employee, which would require an adjustment of status after a while.

What Are the Different Types of Employment Visas?

To reiterate, the different categories of employment visas are based on the type of employment and the nature of the employee-employer relationship. An example of this would be how there are the E1 through E5 visas covering various kinds of employment.

Some of the most common classes include:

  • H1-B: As temporary work permit visas, H1-B visas authorize U.S. companies to employ college-graduate level workers in specific industries. The positions they fill need technical or theoretical expertise in specialized areas of industry.
  • B-1 Visas: As travel visas for business purposes, the B-1 visa authorizes a foreign national to travel to and stay in the United States for a brief time for specific business purposes, such as settling an estate, negotiating a contract, participating in training, or attending a conference. This list is not exhaustive, as many other similar legitimate business activities would qualify for the issuance of a B-1 visa. Nevertheless, the business purpose must relate directly to the applicant’s business outside the U.S., and any U.S. entity cannot pay the applicant a salary.
  • L-1 visas: For intracompany transfers or establishing an affiliated U.S. office, the L-1A non-immigrant visa authorizes a U.S. company to transfer an executive or manager from a related foreign office to an office in the U.S. A foreign company that does not have an affiliated office in the U.S. can use an L-1 visa to send an executive or manager to the U.S. to establish a corresponding office. Nevertheless, the employer must file a Form I-129, Petition for a Nonimmigrant Worker, with a fee for the worker.

What Is Temporary Protected Status (TPS)?

Suppose you live in the U.S. and are a citizen of a country that the U.S. government has determined to be currently in turmoil (including ongoing armed conflict, environmental disasters, or other unique and temporary conditions) and therefore dangerous.

In that case, you may be granted temporary protected status (TPS). TPS is valid for a limited time, and receipt of TPS does not entitle you to a green card or any other type of visa protection.

What If the Employee’s Sponsor Goes Out of Business?

One necessity for all work visas would be that the foreign nationals must be employed at all times by their sponsoring employer during their stay in the U.S.

This means that if the employer becomes incapacitated, or if the company goes out of business, the employee will lose their work qualification. Their visa may be discontinued, as well. Further, they may need to return to their country of citizenship to seek alternative avenues for returning to the U.S. There are some exceptions to these situations. In general, workers must leave the country if they no longer work for their sponsoring employer.

Do I Need a Lawyer to Apply for Adjustment of Status?

A local immigration lawyer can assist you with understanding immigration laws, completing the application process correctly, meeting any deadlines, and possibly improving your chances of gaining permanent resident status via a complex process.