The Barriers to Adjustment of Status That Are Inapplicable to Immediate Relatives of U.S. Citizens.

The process of obtaining a green card can be accomplished via two possible routes: Adjustment of Status and Consular Processing. In a previous post, I discussed that the major distinction between the two is that Adjustment of Status allows you to obtain a greencard while residing in the United States, whereas, Consular Processing requires that the non-citizen beneficiary return to their home country and complete their application abroad. For the purposes of this post, we will be focusing on Adjustment of Status and the bars to adjustment (i.e., circumstances that prevent you from obtaining a greencard while in the U.S.) that are inapplicable to immediate relatives of U.S. citizens.

Immediate relatives are the spouse, children (unmarried and under the age of 21) and parents of United States citizens. By the very nature of being an immediate relative, our immigration laws have established numerous benefits that come with this designation. One of the most notable is the unlimited availability of visas for immediate relatives. For all other enumerated family members (e.g., married children and siblings of U.S. citizens, etc.), there is a preference system that requires a wait for the availability of visas, which can sometimes take upwards of several decades, depending on your preference category and country of birth.

Among the many bars to adjusting status while in the U.S., the United States Citizenship and Immigration Services ("USCIS") has declared that certain bars do not apply to immediate relatives, and therefore are not a barrier to the adjustment process. One common bar to adjustment is the accrual of unlawful presence. If you have remained in the U.S. without legal status, you typically must request a waiver from the government in order to adjust; however, as an immediate relative, the USCIS will look past your unlawful presence and allow you to adjust status, so long as you are otherwise eligible.

Although the USCIS has limited which bars do not apply to immediate relatives, there are still other bases, grounds of inadmissibility and factors that can hold up the adjustment process and prevent these individuals from obtaining a greencard. Putting these other factors aside for now, an adjustment applicant applying as an immediate relative may be eligible to adjust status even if:

The applicant is now employed or has been employed in the United States without authorization;
The applicant is not in lawful immigration status on the date he or she files the adjustment application;
The applicant has ever failed to continuously maintain a lawful status since entry into the United States (i.e., Visa Overstay);
The applicant was last admitted to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) as a visitor under the Guam or CNMI Visa Waiver Program and is not a Canadian citizen;
The applicant was last admitted to the United States as a nonimmigrant visitor without a visa under the Visa Waiver Program; or
The applicant has ever violated the terms of his or her nonimmigrant status.

Given the inapplicability of these bars, they are one less hurdle to overcome in the adjustment of status process and can provide peace of mind to non-citizens who are otherwise eligible to adjust status. If you have any questions about the adjustment of status process or immigration law in general, please contact us at (212) 547-8857 and an experienced immigration attorney will be available to discuss your matters further.

Disclaimer: This blog post and similar posts are not to be considered as providing legal advice. The discussion here is meant for educational and informational purposes only and shall not create an attorney-client relationship with the readers of this content.