What Is Adjustment of Status?
Author: New York Immigration lawyer Alena Shautsova
Immigration laws of the U.S. allow certain immigrants to apply for an Immigrant visa and become U.S. residents. The regular procedure for this process is administrated through the U.S. consulates when a person is applying from his/her home country for an immigrant visa and a consular officer decides if to grant person’s application.
An intending immigrant (or person who would like to stay in the U.S. permanently) does not qualify for a non-immigrant visa such as an F visa (student visa), B visa (a visa for tourism or pleasure), or an E visa… Some visas are visas of so called duel intent, meaning their purpose can be used for non-immigrant goals, and immigrant goals…
Realizing that some non-immigrants would develop an immigrant intent and basis for immigration while in the U.S., the Congress created an exception to the regular consular proceedings allowing certain people who are in the U.S. to apply for permanent residency without leaving the country and without submitting a visa application. This internal process received a name of “adjustment of status” or as many practitioners would call it an “AOS”.
Adjustment of status is a discretionary process. What does this mean? It means that an applicant does not have a right to become a permanent resident in the U.S. An applicant for adjustment of status has to demonstrate that he/she is statutory eligible (meets all the legal requirements), and there are no bars to adjustment (such as illegal entry, unlawful presence, criminal convictions, accusations of fraud, claims of U.S. citizenship, etc.). However, there is another step for the adjustment. It is discretion by the USCIS to give or not to give the status to the applicant.
Usually, USCIS grants the request if the applicant is a person of good moral character and meets all the usual requirements. However, there are cases when from a pure statutory point of view, a person qualifies for AOS, but gets a denial. There can be various reasons for it, and if there is no legal question involved, but the matter is a one of discretion, even U.S. courts would not be able to save the case… See Mele v. Lynch, 8/19/15 (1St Cir, 13-cv-1917).
That is why it is imperative to understand the importance of the process and significance of all and every submission that ones presents to the USCIS, employers, courts, or anywhere that may have consequences for Immigration process.