Adjustment of Status to Lawful Permanent Residence
Consular Process
The Consular Process is used when an individual is outside the United States and seeking to obtain an immigrant visa through a U.S. consulate or embassy in their home country. This process allows eligible family members of U.S. citizens or lawful permanent residents to apply for an immigrant visa from abroad. It serves as an alternative to the adjustment of status, which can only be pursued by individuals already within the U.S. who meet certain criteria.
Steps in the Consular Process
Step 1: Filing the Petition
A U.S. citizen or lawful permanent resident relative must file Form I-130, Petition for Alien Relative, with USCIS. This is the first step in establishing the qualifying family relationship.
Step 2: National Visa Center (NVC) Processing
Once the I-130 petition is approved by USCIS, it is sent to the NVC for further processing. The NVC will notify the applicant and their sponsor about the required forms, fees, and documents needed to complete the process. At this stage, the applicant must submit the DS-260 Immigrant Visa Application, civil documents (e.g., birth certificates, marriage certificates), and undergo background checks.
Step 3: Consular Interview
After submitting all necessary documents and fees, the applicant will be scheduled for an interview at the U.S. consulate or embassy. This is a critical step where a consular officer will review the case, verify eligibility, and determine whether to approve the immigrant visa. Questions typically focus on the applicant’s background, relationship with the petitioner, and their intentions upon arriving in the U.S.
Step 4: Medical Examination
Before the consular interview, the applicant must undergo a medical exam by a physician authorized by the U.S. consulate. The exam ensures the applicant does not have any health conditions that would make them inadmissible under U.S. immigration laws.
Step 5: Visa Issuance
If approved, the immigrant visa is issued, allowing the applicant to travel to the U.S. Once they arrive, they must present the visa at a U.S. port of entry, where they will be admitted as a lawful permanent resident.
Recent Visa Entry
For individuals who have entered the U.S. recently on a valid visa and wish to adjust their status to lawful permanent resident, this pathway provides an opportunity to do so without having to leave the country. This is particularly beneficial for immediate relatives of U.S. citizens.
Additional Details
Legal Entry Requirement
Applicants must have been inspected and admitted or paroled upon their entry into the U.S. This legal entry is essential for adjusting status, as individuals who entered without inspection may not be eligible unless they qualify for certain exceptions (such as under 245(i)).
Family Petition
The family member, typically a U.S. citizen spouse, parent, or child, must file an I-130 petition on behalf of the applicant. Immediate relatives of U.S. citizens, such as spouses and children under 21, benefit from more straightforward processing and no numerical limits (no waiting for a visa to become available).
Maintaining Lawful Status
While the adjustment of status application is being processed, it’s important for applicants to maintain their lawful status and not violate the terms of their visa (e.g., overstaying or working without authorization). Violations can jeopardize their ability to adjust status.
Adjustment of Status Process:
Once the I-130 is approved, the applicant can file Form I-485, Application to Adjust Status. This application includes a biometrics appointment, a possible interview, and an eventual decision on whether the applicant can obtain permanent residency.
245 i
(I-130 Filed Prior to 4/30/01)
Section 245(i) is a provision in the Immigration and Nationality Act that allows certain individuals to adjust their status even if they entered the U.S. without inspection, overstayed a visa, or violated their status. This applies to those who had an I-130 or other qualifying petition filed on their behalf before April 30, 2001.
Who Qualifies Under 245(i)?
Individuals who had a family-based or employment-based immigrant petition filed on or before April 30, 2001, may be eligible for adjustment of status, even if they entered the U.S. unlawfully. Beneficiaries of this provision are "grandfathered" in, meaning they can still adjust their status under certain conditions.
Physical Presence Requirement:
If the I-130 petition was filed between January 14, 1998, and April 30, 2001, the applicant must have been physically present in the U.S. on December 21, 2000, to qualify. This physical presence requirement does not apply to petitions filed before January 14, 1998.
Penalty Fee:
In addition to the usual adjustment of status fees, applicants must pay a $1,000 penalty fee to adjust their status under 245(i). This fee allows individuals to "forgive" their prior immigration violations, enabling them to become lawful permanent residents.
Parole in Place
(Military Service of Family Member)
Parole in Place (PIP) is available to the spouses, parents, and children of current or former U.S. military members, including those serving in active duty, the Reserves, or the National Guard. Veterans who have honorably served are also eligible. This program provides several key benefits, most notably protection from deportation, as recipients of PIP are granted temporary legal status that shields them from removal proceedings. Additionally, family members of U.S. military personnel may qualify to adjust their status to lawful permanent resident, provided they are immediate relatives of a U.S. citizen.
To apply for PIP, eligible individuals must submit a request to U.S. Citizenship and Immigration Services (USCIS), which typically includes documentation proving the family relationship, such as birth or marriage certificates, along with evidence of the military member’s service. This process enables undocumented family members to remain in the U.S. and pursue legal status while staying connected to their military families.
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