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Adjustment of status (I-485): eligibility, process and travel risks

Wang Law Firm, LLC · David Wang, Managing Attorney

Adjustment of status (AOS) is how a foreign national already in the United States obtains permanent residence (a green card) by filing Form I-485, without leaving the country. It is the "last step" toward a green card, and it usually rests on an immigrant petition that has been approved or is filed at the same time, such as a family-based I-130, an employment-based I-140, or an EB-5 I-526E.

The advantage of adjusting status is that you can stay in the U.S. while you wait and apply for a work permit and advance parole. The limits: not everyone can adjust inside the U.S., since your manner of entry and status history directly determine eligibility; and mishandling travel while the case is pending can cause the application to be treated as abandoned.

Who it suits

People in the U.S. on F-1, H-1B, L-1, O-1 or similar visas whose immigrant petition has been approved or can be filed concurrently;
Foreign spouses who married a U.S. citizen after a lawful entry (see Marriage green card);
Fiancé(e)s who entered on a K-1 and married within 90 days (see K-1 visa);
Investors in the U.S. whose EB-5 petitions meet the conditions for concurrent filing (see EB-5).

Basic eligibility

Lawful entry: generally you must have been inspected and admitted by an immigration officer, or paroled into the U.S. People who entered without inspection usually can't adjust status inside the U.S., except for a small number who qualify under the old section 245(i).
An immigrant visa is available: you need an immigrant petition to base the application on, and a visa number must be available when you file. Immediate relatives aren't subject to numerical limits; preference categories must wait until the State Department's Visa Bulletin shows the priority date as "current." Each month USCIS announces whether it is using the "Dates for Filing" or "Final Action Dates" chart; see How to read the Visa Bulletin.
Admissibility: no grounds of inadmissibility, or a waiver has been granted. The review covers criminal records, immigration violations, health, public charge, misrepresentation and more.
Not subject to the bars to adjustment (see below).

The exception for immediate relatives of U.S. citizens

Spouses, unmarried children under 21 and parents (if the citizen is at least 21) of U.S. citizens are "immediate relatives." As long as they entered lawfully, they get significant leniency at adjustment: overstays after entry, lapsed status, unauthorized employment and similar problems usually won't bar them from adjusting. Immediate relatives who entered under the Visa Waiver Program (ESTA) can generally adjust as well.

But this leniency has limits: it doesn't cover entry without inspection, and it doesn't waive grounds of inadmissibility such as misrepresentation or certain criminal issues. Concealing immigrant intent at entry can still be held against you.

Common situations where you can't adjust inside the U.S.

Entry without inspection (and not covered by 245(i));
In non-immediate-relative categories: having lost lawful status by the time of filing, or having worked without authorization or otherwise violated status (employment-based applicants may benefit from the limited leniency of 245(k): no more than 180 days in total);
Entry under the Visa Waiver Program (ESTA): non-immediate relatives generally can't adjust; entry as transit without visa (TWOV): generally can't adjust, even as an immediate relative;
J-1/J-2 holders subject to the two-year home residence requirement who haven't fulfilled it or obtained a waiver;
Entering on a K-1 and not marrying the petitioner;
Entry as a crewman (D visa);
Having a ground of inadmissibility for which no waiver is available.

People in these situations may still be able to use consular processing, but note: leaving the U.S. after more than 180 days or more than 1 year of unlawful presence triggers a 3-year or 10-year bar on returning, respectively. This must be assessed before you leave.

The process

File the I-485: together with the I-130 or I-140 (when concurrent filing is allowed), or on its own after the underlying petition is approved. Include the I-693 medical exam (see Immigration medical exams); family-based cases generally also need the I-864 affidavit of support.
Apply at the same time for an I-765 work permit and I-131 advance parole: these can be filed with the I-485. Once approved, a work permit card is issued, in some cases combined with advance parole in a single card. Those in valid H-1B or L-1 status can also keep working in that status.
Receipt notices: keep your receipts; they prove the case is pending.
Biometrics: go to the Application Support Center as scheduled for fingerprints and a photo.
RFE or interview: you may receive a request for evidence (RFE; see How to respond to an RFE). Marriage-based cases usually require an interview; employment-based cases are sometimes approved without one, as USCIS decides.
Approval: the green card is mailed to the address on your application. Report any change of address to USCIS promptly.

The risks of travel while your case is pending

To leave the U.S. while your I-485 is pending, you generally need to obtain advance parole beforehand (applied for on Form I-131). If you leave without advance parole, your I-485 will usually be treated as abandoned. The main exception: if you hold and maintain valid H-1B or L-1 status when you leave (or H-4 or L-2 as their dependents), and return on a valid visa and continue to maintain that status, the application generally won't be treated as abandoned. K-3/V visa holders have similar rules.

Even with advance parole, you may still be inspected when you return. If you have a history of overstays, whether traveling on advance parole could trigger a bar on reentry needs to be assessed beforehand. Don't book nonrefundable travel before advance parole is approved. For long trips abroad after you have a green card, see Reentry permits (I-131) and long absences.

Employment-based cases: changing jobs under AC21 and I-485J

Under the portability provisions of AC21, employment-based (EB-1, EB-2, EB-3) applicants whose I-485 has been pending for 180 days and whose I-140 has been approved (or is approved later) can move to a new job in a "same or similar occupation" without going through PERM and the I-140 again. When changing jobs, you usually need to file I-485 Supplement J (I-485J) with USCIS, in which the new employer confirms the job offer and explains that the new position is the same as or similar to the original one.

Whether a job is "same or similar" is judged by looking at the job description, duties, occupational classification codes, pay and other factors together; bigger moves (for example, from a technical role to a management role) need case-by-case assessment. The situation is different if you leave before the I-485 has been pending 180 days, or if the I-140 is withdrawn before it has been approved for 180 days, so talk to an attorney before changing jobs. For PERM and I-140 basics, see PERM labor certification.

Adjustment of status compared with consular processing

Item	Adjustment of status in the U.S. (I-485)	Consular processing abroad (immigrant visa)
Where the applicant is	Inside the U.S.	Outside the U.S., usually in their home country
Who decides	USCIS	The NVC and a U.S. embassy or consulate
Working while waiting	Can apply for a work permit	Not applicable before entry
Travel while waiting	Advance parole required beforehand (H/L exception)	Not restricted
Options after a denial	In some cases, a motion to reopen or reconsider, or renewing the application in immigration court	Generally no formal appeal of a visa refusal
Tolerance for past status problems	Lenient for immediate relatives, stricter for other categories	If you were unlawfully present, leaving may trigger the 3-year / 10-year bars
Best for	People lawfully in the U.S. who want to wait there	People abroad, or who aren't eligible to adjust in the U.S.

Timing and costs

Fees and processing times for I-485, I-765 and I-131 all change, and the fee structure has also changed in recent years; rely on what USCIS currently publishes: USCIS filing fees and USCIS processing times. For how to check, see How to check filing fees and processing times.

Family members

In preference categories (such as F2A, EB-2 and EB-3), the principal applicant's spouse and unmarried children under 21 can generally file I-485s as derivative applicants at the same time, provided they are also in the U.S. and each meets the requirements for adjustment. Immediate relative categories don't allow derivatives; each family member must apply separately.

Common questions

Do I still need to maintain my F-1 or H-1B status while my I-485 is pending?

You can remain in the U.S. lawfully while your I-485 is pending, but we recommend maintaining your original status where possible so you have a fallback if the I-485 is denied; H-1B/L-1 status also lets you travel without advance parole. Whether to maintain it depends on weighing your specific situation.

Can I adjust status after entering on a tourist visa?

Whether you "can file" and whether there is "risk" are two different questions. Immediate relatives of U.S. citizens who entered lawfully are generally eligible to adjust, but if you already planned to immigrate when you entered and didn't disclose it, you may be found to have made a misrepresentation. See B-1/B-2 visa and Marriage green card.

What if my I-485 is denied?

It depends on the reason for denial and your status at the time. Options may include a motion to reopen or reconsider, refiling after fixing the problem, or renewing the application in immigration court proceedings (which must be handled by an attorney who practices in that area). If you are left without lawful status after a denial, talk to an attorney as soon as possible.

What happens if the Visa Bulletin retrogresses after I file my I-485?

An I-485 already filed stays pending and can be approved once the priority date becomes current again. The work permit and advance parole can generally be renewed in the meantime.