Immigration law (INA §245) allows certain foreign nationals who are physically present in the United States to adjust status to permanent resident (green card holder). A foreign national may not be eligible to file Form I-485, Application to Adjust Status, if one or more bars to adjustment applies. Bars to adjustment of status are rules that exclude certain individuals that have committed a particular act or violation. They are factors that can disqualify an applicant. Many applicants get a Form I-485 denial as a result of bars they didn’t realize existed.
Some of the most common statutory bars to adjustment that result in I-485 denials include:
- Unlawful status
- Failure to maintain status
- Unauthorized employment
Depending on how you entered the United States or if you committed a particular act or violation of immigration law, you may be barred from adjusting status. You are ineligible to apply for adjustment of status if one or more bars to adjustment listed in section 245(c) of the Immigration and Nationality Act (INA) apply to you. These applicants should expect a Form I-485 denial unless they qualify for an exemption.
Exemption for I-485 Bars
Certain “privileged” classes may be exempt from the bars to adjustment. The INA provides exceptions for these individuals. In other words, their violations of these specific rules do not result in a Form I-485 denial. The bars to adjustment discussed in this article do not apply to:
- Immediate relatives;
- Violence Against Women Act (VAWA)-based applicants;
- Certain foreign doctors and their accompanying spouse and children;
- Certain G-4 international organization employees, NATO-6 employees, and their family members;
- Special immigrant juveniles;
- Certain members of the U.S. armed forces and their spouses and children; or
- Certain employment-based applicants who meet the INA 245(k) exemption.
A foreign national is barred from adjustment of status if the foreign national is in an unlawful immigration status on the date of filing Form I-485, Application to Adjust Status.
You are most likely in a lawful immigration status if you have documentation that grants permission to be in the United States and that documentation is current and valid. Examples of documentation include a valid visa, parole, deferred action or visa waiver program.
On the other hand, if you have been granted an immigration benefit (such as a visa, parole or other status) that has expired or been revoked, you are not in a lawful immigration status.
Failure to Maintain Status
A foreign national is barred from adjustment of status if the foreign national has ever failed to maintain a lawful immigration status since entry into the United States. This includes the current stay and any previous trips to the United States.
When a foreign national remains in the United States longer than the period of authorized stay, it’s called “overstaying” a visa.
Your visa may be valid for several years. However, the visa does not govern the length of your authorized stay in the U.S. — it merely allows you to enter the United States during that time period. Instead, your Form I-94 governs your authorized stay in the United States. The date on your Form I-94 is the last day that you are permitted to remain in the U.S., and it may not be valid for as long as the visa is valid. You must depart the U.S. by the date on the Form I-94, or you will have overstayed the visa.
If you have ever overstayed a visa for 180 days or more and then departed the United States, we recommend that you speak to an immigration attorney before filing any USCIS form. This triggers separate bars to reentry that are unrelated to the bars discussed in this article about I-485 denials.
Unauthorized employment is any service or labor performed for an employer within the United States by a foreign national who is not authorized by USCIS to accept employment. It also includes employment that exceeds the scope or period of the foreign national’s employment authorization.
With certain exceptions, a foreign national is barred from adjusting status if he or she:
- Continues in or accepts unauthorized employment prior to filing an application for adjustment of status; or
- Has ever engaged in unauthorized employment, whether before or after filing an adjustment application.
After filing Form I-485, an adjustment of status applicant must continue to have employment authorization before accepting employment or continuing in an existing job. Generally, AOS applicants may file Form I-765, Application for Employment Authorization, to obtain an Employment Authorization Document. Form I-765 may be filed together with Form I-485 or while Form I-485 is pending. The filing of an adjustment application itself does not authorize employment.
It’s important to note that if USCIS denies Form I-485 to adjust status, any EAD granted based on that adjustment application may be subject to termination. Again, it’s important that the EAD holder comply with the termination if he or she wants to avoid a new violation.
Avoid the Form I-485 Denial
If any of the above bars to adjustment apply to you, and you are not exempt, seek the assistance of an immigration attorney before submitting any USCIS form. Any immigration attorney can analyze your unique situation and develop a strategy to avoid the Form I-485 denial.
CitizenPath provides simple, affordable, step-by-step guidance through USCIS immigration applications. Individuals, attorneys and non-profits use the service on desktop or mobile device to prepare immigration forms accurately, avoiding costly delays. CitizenPath allows users to try the service for free and provides a 100% money-back guarantee that USCIS will accept the application or petition. We provide support for the Adjustment of Status Application (Form I-485), Petition to Help a Relative Obtain a Green Card (Form I-130), and several other USCIS forms.