Many noncitizens travel to the U.S. on short-term visas, hoping to settle down in the long term. Others come with short-term goals but decide to stay after meeting someone or getting a job offer they can’t refuse. To remain in the U.S., you have to ask to change your temporary nonimmigrant visa into a permanent immigrant visa through adjustment of status.
Here, we explore adjustment of status. We begin with a brief primer on the differences between immigrant and nonimmigrant visas before turning to what it means to adjust your status, how you adjust status and potential challenges you might encounter during the process.
Key Takeaways:
- To adjust status, you must currently be qualified for a green card.
- How adjustment of status works depends on your green card eligibility.
- You may adjust status from almost any nonimmigrant visa, but the terms of some visas may make adjustment next to impossible.
Nonimmigrant vs. immigrant visas
Nonimmigrant visas are temporary visas with a specific expiration date and limited purposes. Immigrant visas are green cards. Although the card expires, the underlying immigration status of lawful permanent resident (LPR) that comes with a green card doesn’t expire.
Most nonimmigrant visas require that the noncitizen applicant have nonimmigrant intent. To have nonimmigrant intent means you’re not planning to come to the U.S. to stay.
Some nonimmigrant visas allow you to hold “dual intent”—to simultaneously intend to leave the U.S. and to remain in the U.S. H1B (specialty occupations) and L (managers of foreign branches of U.S. companies transferring to branches in the U.S.) are the primary dual intent visas.
What’s adjustment of status?
Adjustment of status is the process of asking the government to change your nonimmigrant status into immigrant status. You apply by submitting a Form I-485, Application to Register Permanent Residence or Adjust Status, to United States Citizenship and Immigration Services (USCIS).
Adjustment of status requirements
You may qualify to adjust status from a nonimmigrant to an immigrant visa if:
- You’re currently in the U.S.
- You qualify for a green card
- USCIS approves a visa petition on your behalf
- An immigrant visa is available
- You’re not barred from adjusting status
- You maintain your status
Pro tip:
The government won’t prevent you from adjusting status just because you originally came to the U.S. on a visa requiring nonimmigrant intent. Still, if you’re adjusting status from a visa that requires nonimmigrant intent, take care not to imply you intended to stay all along. USCIS may deny your application if they think you lied in the past.
Qualifying for a green card
You may primarily qualify for a green card based on:
- Family
- Employment
- Humanitarian considerations
The law authorizes other highly specific ways to obtain a green card if you fall into limited groups, like being a Cuban national or winning the diversity visa lottery operated by the U.S. State Department.
Visa petition
Usually, to obtain a green card, someone must sponsor you. Some exceptions exist, like humanitarian applications, high preference employment-based green cards and Violence Against Women Act (VAWA) applicants. To begin the process, you or your sponsor submit one of the following:
- Form I-130, Petition for Alien Relative
- Form I-140, Immigrant Petition for Alien Workers
- Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant
- Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor
- Form I-589, Application for Asylum and for Withholding of Removal (asylum)
- Form I-914, Application for T Nonimmigrant Status (human trafficking)
- Form I-918, Petition for U Nonimmigrant Status (crime victim)
Specifically, having the following applications pending allows you to live in the U.S. and, eventually, apply for work authorization:
- Asylum
- Human trafficking (T) and crime victim (U) visas
For the others, whether you may remain depends on visa availability. If a visa is available, you may typically stay in the U.S. on pending adjustment status.
Visa availability
With the exception of IR visas, the government limits how many family- and employment-based green cards it issues per year. Those limitations include that, each year, the government:
- May issue up to 226,000 family-preference visas
- May issue up to 140,000 employment-based visas
- Can’t issue more than 7% of total visas to any particular country
Before you adjust status based on a limited issuance visa, a visa must be available according to the visa bulletin, published monthly by the U.S. State Department. You should also consult USCIS’s adjustment of status filing charts page to determine which chart contained within the bulletin to use.
To read the bulletin, you need to know some vocabulary:
- Your priority date: the date USCIS received your immigrant visa petition
- Final action dates: the date the applicant received their green card
- Dates for filing: when to file your green card application
Generally, if a visa is unlikely to become available while your nonimmigrant status remains valid, you’ll struggle to adjust status successfully.
Pro tip:
Asylum claims often take many months or years to process. If you have a valid asylum claim, you may be able to use it to bridge the gap. However, filing for asylum without the genuine belief you may qualify may lead the government to allege you committed fraud. Many choose to follow this path only with the careful guidance of a lawyer.
Bars to adjustment of status
Many visa qualification descriptions include a catch-all term stating that one part of qualifying for the visa is not being disqualified. You usually become ineligible for an immigrant visa if you’re inadmissible or deportable.
Common ways to become inadmissible or deportable include:
- Accruing unlawful presence (living in the U.S. without authorization)
- Working without authorization
- Violating the terms of your visa
- Committing crimes
You may be barred for:
- Three years
- Ten years
- Life
One of the more unique bars to adjustment of status comes with the J visa (for exchange visitors), which typically requires you to promise to return to your home country for two years before you may get another U.S. visa.
Some visas are exempt from some bars, and USCIS may waive most ineligibilities through a waiver of inadmissibility or unlawful presence. However, you often have to leave the U.S. after USCIS grants a waiver and get a green card through consular processing.
Maintaining Status
You usually have to maintain your legal status to be eligible for adjustment. You may maintain status by extending your current visa or obtaining a different temporary status.
Notably, while USCIS evaluates your I-485, you typically can’t depart the U.S. If you leave, USCIS assumes you’re abandoning your application. If you have to go, you should obtain advance parole first.
Pro tip:
Depending on where you live, USCIS may take between five months and two years to process an advance parole application. In emergencies, USCIS may grant parole—rather than advance parole—after you leave to allow you to return. However, consider consulting an attorney before you leave the U.S. if your I-485 is pending.
Changing or extending your status
If your status is nearing expiration, you may use Form I-539, Application to Extend/Change Nonimmigrant Status, or Form I-129, Petition for a Nonimmigrant Worker, to extend it or change between nonimmigrant visas.
To use Forms I-539 or I-129 to extend your authorized stay in the U.S., you must:
- Qualify for a new visa or an extension of your current visa
- Prove you maintained status up to when you filed
- Apply before your current visa expires
Some visas limit renewal. For example, H1B visas last for three years and may be renewed once—only once.
Qualifying for another temporary status
Most immigration benefits are immigrant or nonimmigrant visas, but some statuses don’t fit neatly into those categories, especially humanitarian statuses. You may qualify for the following to bridge the gap while your green card application is pending:
- Temporary Protected Status (TPS)
- Humanitarian parole
- Deferred Enforced Departure (DED)
These programs primarily depend on the conditions in the country you’re from.
Potential adjustment challenges:
Adjusting your status also comes with challenges, many of which we’ve touched on above. How prohibitive these challenges are usually depends on what kind of immigrant visa you apply for.
Issues of nonimmigrant intent
When you submit your I-485 to request a green card, you declare that you have immigrant intent and plan to remain in the U.S. This declaration often makes extending or renewing your nonimmigrant status tricky.
Forms I-129 and I-539 both ask whether you or anyone else has ever filed an immigrant visa petition on your behalf. You may run into trouble if, for example, you apply for adjustment of status from a tourist visa to a green card then you request a temporary work visa. USCIS may deny your work visa request based on the pending I-485 and the fact that it shows your immigrant intent.
Pro tip:
USCIS rarely schedules interviews for nonimmigrant visa transfers or extensions. You may slip by at the I-129 or I-539 level, but USCIS may ask about your intent in transferring or extending your visa during the I-485 process. Even if you manage to maintain your legal status, you may be denied a green card for violating your earlier visa’s terms.
Adjustment of status timeline
The adjustment of status timeline presents one of the most significant obstacles to many would-be immigrants. From the time you submit your I-485, adjustment of status may take an average of 10 to 30 months, but some applications may take months or years longer.
Work authorization
Even those green card pathways that allow you to remain in the U.S. don’t always offer work authorization right away. For most people, not having work authorization may seriously impede adjusting status.
Adjusting status from a nonimmigrant to an immigrant visa
Adjustment of status usually requires careful planning, and the process varies depending on how you qualify for a green card. While this article may help you get started, consider hiring an immigration lawyer for tailored, specific advice. They can explain how the law applies in your unique circumstances and guide you through your options to adjust status.
