It depends. Some individuals may be able to file Form I-485, Application to Adjust Status, concurrently with Form I-130 or shortly thereafter. Others people can’t do this. One of the biggest determining factors is the qualifying relationship in the I-130 petition. We’ll explain.
Among other eligibility requirements for adjustment, an applicant must meet the following criteria to adjust status:
- Be physically present in the U.S. through a lawful entry; and
- Have an immigrant visa immediately available.
Generally, the applicant must have remained in a lawful immigration status also. However, there is an exception for immediate relatives of U.S. citizens. Many applicants who overstayed a nonimmigrant visa are able to adjust status if they qualify as immediate relatives.
Physically present in the U.S. through a lawful entry
You must be physically inside the United States to file the AOS application. Generally, your presence in the U.S. must have been through a lawful entry at a port of entry. Although there are certain exceptions (such as an overstay for immediate relatives) and waivers for others, that isn’t the focus of this article.
Have an immigrant visa immediately available
The most difficult aspect of this answer for people to understand tends to be the availability of an immigrant visa.
If you are an immediate relative (spouse, parent, or unmarried child under 21) of a U.S. citizen petitioner, immigration law makes an immigrant visa immediately available to you. There is no limit on the number of visas issued to immediate relatives each year. Therefore, immediate relatives always have an immigrant visa available to them.
If you are not an immediate relative, you are in one of the preference categories. There are annual limits set by Congress on the number of visas that U.S. immigration officials can issue in each category. That’s why many people have to wait for a green card. For the immigrant visa to become available, two things must happen:
- USCIS must approve the I-130 petition; and
- The priority date for the petition must be current.
To learn more about priority dates and determining when a date is “current,” please read How to Read the Visa Bulletin.