An individual’s immigration history is a central factor in determining their eligibility to adjust status. The path to a green card from inside the United States is often simpler and more desirable than returning to one’s home country for consular processing, but it’s not a viable option for everyone.
A person’s past immigration violations, the way they entered the country, and any criminal history can create significant obstacles. It’s essential to understand how these factors affect your case to determine the right path forward.
The Requirement of a Lawful Entry
For most applicants, a fundamental requirement for adjusting status is that their last entry into the U.S. was a “lawful admission” after being inspected by an immigration officer.
This means you must have entered with a valid visa or through a program like the Visa Waiver Program. If you entered without inspection, it generally makes you ineligible to adjust status.
This rule can be a major hurdle for many. However, there are exceptions. Some humanitarian visas, like the T visa for human trafficking victims or the U visa for crime victims, have provisions that allow you to adjust status even after an unlawful entry.
Additionally, an individual may be able to utilize Section 245(i) of the Immigration and Nationality Act if they had a qualifying petition filed on their behalf before a specific date, which allows them to adjust status despite an unlawful entry by paying a penalty fee.
Are you unsure about your eligibility? Contact us for a case evaluation.
How Unlawful Presence and Visa Overstays Affect Your Case
Staying in the U.S. beyond your authorized period of stay is known as a visa overstay, which leads to accumulating “unlawful presence.” While a visa overstay can be a serious issue, it is not always a permanent bar to adjustment of status. The outcome depends on your specific immigration category.
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If you are an immediate relative of a U.S. citizen (spouse, parent, or unmarried child under 21), you can typically adjust status even if you have overstayed your visa.
In these cases, the law is more forgiving because of the close family relationship. However, for most other visa categories, overstaying can make you ineligible to adjust status.
Additionally, if you have accrued significant unlawful presence and then leave the country, you could be subject to a three or ten-year bar from re-entry, making consular processing a risky option without an approved waiver.
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