New York Lawyer's Legal Updates

Change Of Status V. Adjustment Of Status

Author: New York Immigration attorney Alena Shautsova

Change of status occurs one an individual who already is in the United States in a lawful status wishes to change it to a different non-immigrant status. A person is admitted into the U.S. according to the intentions he/she has and depending on activities he/she will be engaging in the U.S. For example, one who would like to travel in the U.S., will have to apply and will be admitted in a B status; one who would like to work, will have to apply and will be admitted in an H status; one who would like to study will need to apply and will be admitted in an F status… So, when one who was admitted as s tourist would like to study, he/she will have to apply for a change of status.

The hardest challenge in doing so would be to overcome the possible allegations of coming to the U.S. using a wrong visa and /or willing to remain in the U.S. indefinitely. In other words, if USCIS believes that one’s originally intended to marry a U.S. Citizen in the US, or wanted to become a student form the very beginning, such a person may face allegations of fraud. This is where a good attorney with relevant experience comes in to make sure that the applicant would not have to deal with such hard to beat allegations.

To change one’s status, the applicant has to submit form I-589 with supporting documents. Only applicant in a legal, lawful status may change their status to a different one. It means that if one’s status expired, he/she cannot file a successful application for change of status. Sometimes, it is possible to “restore” lost status. The chances depend on circumstances and have to be discussed with an attorney.

Sometimes, the law prohibits status change. For example, holders of C,D, K-1,2 and TWOV are not allowed to change their status to another non-immigrant status.

The process of getting a permanent resident status while one is in the United States is called an adjustment of status. Adjustment of status leads to a green card. During the adjustment of status, a person is allowed to work (one can apply for and receive an EAD).

The most common basis for adjustment of status to a permanent resident is the marriage of a US Citizen. Those who overstayed their visas and now are immediate relatives of the US citizens, will be forgiven. However, if one did not enter the country legally to begin with, they will need to apply for a waiver, the most common of which is the I-601A Waiver (unless a person qualifies for an exception, such as parole in place, VAWA, waived in exception, etc. ).

Other grounds for adjusting status to that of a lawful permanent resident are employment based, Asylum based green card, Investment based green card, or *Self Sponsorship*. Self-Sponsorship is reserved for individuals that possess an “extraordinary ability,” Olympic athletes or Nobel Peace Prize winners for the most part.

18 March 2016
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