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Adjustment of Status Application
Immigration Law Practice Expediter 4.02
Adjustment of Status Filing Procedures
1. Place of Filing
Authority: See 8 C.F.R. §§ 245.1(a) and 1245.1(a).
Discussion: See generally Immigration Law and Procedure § 51.06[2][a].
(A) Administratively:
(1) With USCIS regional service center if visa eligibility rests on approved employment-based petition.
(2) Otherwise, ordinarily, with district director for applicant's place of residence.
(3) In case of arriving noncitizen (paroled but not in removal proceedings), with district director having jurisdiction over place of arrival.
(B) In removal proceedings, with immigration court:
(1) after admission, and filing for first time;
(2) when renewing application denied administratively after admission; or
(3) when filed after admission and denied after return following advance parole.
Authority: See 8 C.F.R. § 245.2(a)(1), § 1245.2(a)(1).
2. Contents of filing for each applicant:
Discussion: See Immigration Law and Procedure § 51.06[2][b].
--> Cross Reference: USCIS has several guides to the process, including Application Procedures: Becoming a Permanent Resident While in the United States, which is available at http://uscis.gov/graphics/howdoi/LPRApplication.htm.
(A) Form I-485 (adjustment application).
(B) (Optional) Form I-485 Supplement A, for § 245(i), 8 U.S.C. § 1255(i) filing.
(C) Copy of I-797 notice of approval of I-130 or I-140 petition, or complete I-130 petition filing or I-140 filing for any of the first three EB preferences, if approval of the family-sponsored or EB petition would make a visa number immediately available or establish that the applicant is an immediate relative.
Authority: See 8 C.F.R. §§ 245.1(g), 245.2(a)(2)(i), as amended, 67 Fed. Reg. 49,561, 49, 563 (July 31, 2002) (restoring concurrent filing for employment-based applicants).
(D) Form G-325A (biographic information) for applicant aged 14-79.
(E) Form G-28 notice of appearance, if applicant represented.
(F) Fee per 8 C.F.R. §§ 103.7(b), 1103.7(b) to cover later appointment for USCIS fingerprinting.Practice Tip 39
(G) Form I-693 showing results of medical examination (required by regional service centers and some district offices with filing) including compliance with vaccination requirements.
(H) Form I-864 affidavit of support and I-864A contract of support, if required, and/or employment letter(s), preferably notarized, with documentation of assets and/or income to satisfy public charge requirements.
Discussion: See Immigration Law and Procedure § 63.05[5].
(I) Identity photographs (at least 2) conforming to M-378 instructions.
(J) Birth certificate.
(K) Other documents needed to establish family relationship for derivative applicants, including marriage and/or divorce or death certificates.
(L) Copy of passport, including visa pages, copy of I-94, copy of I-797 and/or other documents showing admission and maintenance of status, if applicable. (Note that a passport is not a required document).
(M) (Optional) Form I-508 waiver of diplomatic immunity for applicant in A, E, or G status.
(N) Application for any waiver that may be needed and can be granted.
(O) Filing fee per 8 C.F.R. § 103.7(b) (or 8 C.F.R. § 1103.7(b)) plus penalty fee of $ 1000 if filing under INA § 245(i), 8 U.S.C. § 1255(i), except for applicant under the age of 17 and "family unity'' beneficiaries.Practice Tip 40
(P) (Optional) Form I-131 application for advance parole ("Application for Travel Document'') with showing of legitimate personal or business reason to travel outside U.S., at least two photographs, and filing fee per 8 C.F.R. § 103.7(b) or 8 C.F.R. § 1103.7(b).
(Q) (Optional) Form I-765 application for employment authorization with two photographs and filing fee per 8 C.F.R. § 103.7(b) or § 1103.7(b).Practice Tip 41
3. Interview
Authority: See 8 C.F.R. §§ 245.6, 1245.6.
Discussion: See also Immigration Law and Procedure § 51.06[2][d][iii].
(A) The regulations call for an interview but permit its waiver. The interview may be waived for a child under 14, when the applicant is clearly ineligible, or when it is unnecessary. The interview usually is waived in employment-based cases; the regional service center may, however, schedule an interview at the district office.
(B) Interviews often are scheduled where eligibility rests on marriage; the applicant and spouse will be requested to appear and produce evidence of good faith marriage, including joint medical coverage, joint tenancy, life insurance coverage, pictures of wedding reception, honeymoon, and marital life.
(C) Where the application is made or renewed in removal proceedings, the noncitizen is examined at hearing on eligibility and discretion and may present evidence.
4. Approval
The grant of residence by adjustment is recorded on Form I-181 in the noncitizen's file. If granted in a removal proceeding, it is part of the order. As the USCIS may not issue the I-551 (''green card") for several months, approval is endorsed in the passport as temporary evidence of the grant so that the noncitizen may meanwhile travel and be admitted to the U.S.
Discussion: See Immigration Law and Procedure § 51.06[2][e], [3].
5. Denial and Remedies
Authority: See 8 C.F.R. § 245.6 or § 1245.6.
Discussion: See also Immigration Law and Procedure § 51.06[2][f].
(A) There is no administrative appeal from an administrative denial.
(B) The applicant may, however, move for reopening or reconsideration.
(C) An applicant who filed after admission may renew the application in removal proceedings even if the decision was made after arrival per advance parole.
(D) If the applicant filed on arrival and before an admission, there is no other administrative remedy.
(E) A denial by an immigration judge may be appealed to the Board of Immigration Appeals as part of the removal order.
NOTE: An applicant granted conditional residence as a spousal beneficiary or immigrant entrepreneur may use the procedure for removal of the condition, which is described in the next Practice.
Authority: See INA § 216, 8 U.S.C. § 1186a.
FOOTNOTES:
Practice Tip 39.
The USCIS will not accept a fingerprint card (FD-258) except from certain applicants for benefits who are applying from abroad. Instead of filing the completed fingerprint card, the applicant should submit a separate fingerprinting fee in addition to the application fee. USCIS will then send an appointment letter so that the applicant can be fingerprinted at an authorized fingerprint site. For more information, consult the USCIS information online at http://uscis.gov/graphics/formsfee/finger/allapps1.htm.
Practice Tip 40.
The USCIS will not accept a fingerprint card (FD-258) except from certain applicants for benefits who are applying from abroad. Instead of filing the completed fingerprint card, the applicant should submit a separate fingerprinting fee in addition to the application fee. USCIS will then send an appointment letter so that the applicant can be fingerprinted at an authorized fingerprint site. For more information, consult the USCIS information online at http://uscis.gov/graphics/formsfee/finger/allapps1.htm.
Practice Tip 41.
The USCIS will not accept a fingerprint card (FD-258) except from certain applicants for benefits who are applying from abroad. Instead of filing the completed fingerprint card, the applicant should submit a separate fingerprinting fee in addition to the application fee. USCIS will then send an appointment letter so that the applicant can be fingerprinted at an authorized fingerprint site. For more information, consult the USCIS information online at http://uscis.gov/graphics/formsfee/finger/allapps1.htm.
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