FAQ: Adjustment of Status: Applying for a Lawful Permanent Residency (“Green Card”) while in the U.S.

If the foreign worker or sponsored family member is within the United States, he or she may apply for adjustment of status by filing an application with the INS in the United States. In the case of a foreign worker, the individual’s priority date, established at the time of filing the initial application for labor certification with DOL, should be current at the time of filing this application. The foreign-born family member must also have a current priority date at the time of filing for adjustment of status.  NOTE:  Except for immediate relative petitions, all other applicants for immigrant visa petitions must have an underlying visa status while the green card (adjustment of status) immigrant visa petition is pending. 

The application can remain pending for several months before CIS issues lawful permanent residence to the foreign national. If the foreign national needs to travel abroad during this time, he or she must seek special travel permission known as advance parole. The foreign worker must also have employment authorization while the adjustment application is pending.

Who is Eligible For Adjustment of Status?

Adjustment of status is typically only available to individuals who have always maintained lawful status in the United States and entered the U.S. legally. Common exceptions to this are:

• VAWA Applicants do not have to show legal entry to adjust
• INA 245(i) (those whose labor certifications or immigrant visa petitions were filed prior to April 30, 2001 could adjust their status even if they have violated U.S. immigration laws by not complying with the terms of their nonimmigrant visas or entered illegally). These individuals would have to pay a penalty fee of $1,000.
• INA 245(k): certain employment-based visa applicants could adjust status if they had not been out of nonimmigrant status for more than an aggregate of 180 days.

What are the Advantages of Adjustment of Status vs. Consular Processing?

Processing your green card case at a consulate requires that you (and your family members if part of your petition) will be required to travel abroad whereas with adjustment of status, there is no international travel but merely travel to your local CIS office if you are called for an interview.   Other benefits to adjustment of status:

• There are also more trying documentary requirements for consular processing including a thorough background check, which may delay final processing for months, keeping you in that country until you are cleared by the consul.
• When you consular process, you are required to submit police certificates indicating your criminal background or lack thereof from every place you have lived since the age of 16, regardless of your country of origin or passport-identified country.  Depending on the region, obtaining police reports can be a very timely process, delaying your ability to come back into the U.S. within a short amount of time.  These police certificates are not required in adjustment of status cases.  Your fingerprints are taken and cleared far before the actual interview so, assuming everything else goes well, you will not have to wait beyond the interview date at your local INS office for your green card.
• If your case is denied at the consulate, there is typically no way to appeal a denial.  You can file a motion to reopen a denied adjustment while you are still in the U.S. and you can generally fight a denial while still in the US with your loved ones.  
• You cannot have an attorney with you at the consulate to represent you at your interview but you can with adjustment of status before USCIS. 

Why Would an Adjustment of Status Case Be Denied?

The new “Heightened Discretion” Adjustment Standard under Trump 2.0.: Forcing Immigrants to Consular Process 

In mid 2026, USCIS announced in Policy Memo 602-0199 a new view towards all adjustment of status cases submitted, placing the burden on the applicant to prove why the applicant can’t instead travel to a consulate abroad and interview for their green card there instead of using adjustment of status in the U.S.  This applies even if there is no history of immigration violations present and the applicant qualifies for adjustment of status – and even if married to a US citizen spouse.   DHS now calls adjustment of status process  a form of “extraordinary relief.”

• DHS believes that immigrants who came in legally as nonimmigrants should expect to consular process, not use adjustment of status.
• The burden is on the immigrant now who has a clean record – i.e., no immigration violations of any sort (no overstay, no violations of terms of the NIV), to show that other positive equities exist to make the extraordinary grant of adjustment of status possible. 

This makes it extremely difficult and very case specific this weighing of equities and up to the interviewing officer whether there is enough to grant the case. If the employment-based I-140 applicant has no US citizen spouse or no long history in the US of positive work and community ties or has a good job and funds to be able to go through the inconvenience of consular processing, this policy could make it much more difficult to use adjustment of status. 

First, this presumption that an immigrant should interview abroad doesn’t take account for the realties of consular processing such as the unknown length of time one could be stuck abroad after an interview if the consulate places the case in “administrative processing” due to a variety of reasons outside the applicant’s control (such as if one of the background checks doesn’t come back in time by the interview date or other behind the scenes issues at the consulate delay the processing of the visa or its review).

• A visa applicant’s employer may not be able to afford to let the applicant be stranded outside the US for two weeks to a month to who knows how long because of the consulate backlog. The applicant could lose his or her job, the employer’s business could suffer such as project interruption, customer harm, or other serious issues due to the applicant’s business (think of a specialist doctor in a rural hospital who is one of a kind in that group and other doctors can’t fully cover). 
• An immigrant forced to interview at a consulate abroad could also affect the mental and physical health of a US citizen family member who depends on the applicant’s physical presence in the U.S., children, parents, and even a spouse.  Being stuck abroad due to administrative processing could adversely affect the lives of those they love.

Second, by forcing consular processing, more immigration backlogs created the system and more separation from loved ones is likely to occur. The harsh reality of forcing an applicant to travel abroad for their consular interview instead of allowing him or her to adjust status could also mean that the immigrant triggers the 10 year bar for unlawful presence (if the immigrant has 1 year or more of unlawful presence or overstay). But if the immigrant had overstayed their visa but could still show s/he entered legally and was trying to adjust status as a spouse of a US citizen, the immigrant could avoid the unlawful presence bar completely by not departing for their interview abroad (as the 3 year (180-364 days of unlawful presence) and 10 year bars are triggered by departure from the US).  Check this out for more about unlawful presence waivers.  

• If adjustment is denied, this means the immigrant has to often choose between a tougher cancellation of removal case with a harder hardship standard in removal proceedings just to stay with their spouse in the US to avoid consular processing or hope that USCIS won’t place him or her in removal proceedings that quickly and s/he can get enough time to sit out the 2 1/2 years for the 601A unlawful presence waiver to be decided in the US before s/he is forced to leave or before ICE picks her up. 

So what is USCIS really weighing here at your adjustment of status interview, under this new policy? 

There’s pros that can help your adjustment case:

• Is Allowing You to Stay in the “Best Interest of the US”? (is the applicant’s physical presence critical to a US business, infrastructure, or vital to U.S. industry or interests?  This could be national security, healthcare, public safety, scientific contributions)
• Could allowing You to Stay Provide Necessary Services to a US citizen or LPR family member or person who employs you? Does this person employ you in a job no one else could do or this person could not afford or be able to realistically find someone else given the unique circumstances?
• Hardship to your qualifying relatives (various factors) if you had to consular process?
• Continuous lawful immigration status, long-term US presence, lawful work history
• Good moral character, community involvement, how long you’ve been in the US 

 What will weigh against you:

• Immigration violations (overstays, illegal entry in the past, illegal employment)
• Lying to USCIS or CBP for an immigration benefit or entry or using fake documents
• Arrests or criminal convictions, even misdemeanors and even if not inadmissable crimes requiring a waiver

USCIS could also hold against you:

• Use of public benefits (which could also lead to public charge inadmissability ground);
• Lack of current employment or failure to file taxes for illegal employment 

In reality, it’s like you have to present a hardship waiver at your adjustment interview. That’s tough, in such a short window and in person.  You must present your case so the officer gets the equities and the hardship if you have to travel abroad. Especially because most officers don’t decide this in front of you and will expect you to explain it to the officer on the spot but will look at your documents days and often weeks later when the officer is reviewing all their outstanding cases. Who knows what the officer remembers or what good notes s/he took during your interview. You must able to present your case so the officer remembers and focus on the strongest arguments even when you’re not in front of them weeks later. Hard to do in the short time span you have. 

Working with a waiver attorney who is used to pulling out uniqueness and hardship to get the government to listen if you’re going to file for adjustment is your best bet. Talk to Attorney Heather about your case: 

Lying on immigration forms or using fake documents.

What if you simply don’t mention a short period of employment when you sign off on the forms for your case?  In the first place, the forms for adjustment of status specifically ask you to list all of your employment for the past 5 years. What if you lied about how long you had been working for a particular company or living with your spouse?  If you deliberately misstate on one of those forms, and the immigration people subsequently find out that you lied, you have three problems.

• You could be charged with material misrepresentation, which requires an I-601 waiver in which you have to show extreme hardship to a US citizen or Lawful Permanent Resident spouse or parent, if your waiver is not approved and you are not able to adjust.  The person likely to be deciding your fraud waiver is the person you likely lied to at your adjustment interview, who caught you in the act.  Remember, fraud waivers are not just about hardship; they are also about discretion and whether you deserve the waiver. So the very person you lied to has to decide that you are worthy of being forgiven through a positive exercise of discretion.  These cases are more difficult for these reasons and given that adjustment of status, itself, is a discretionary application, even if you hadn’t committed fraud.  There’s no guarantee that your adjustment case would have been granted in USCIS discretion; they could force you to interview abroad for your I-140 immigrant visa or I-130 family based immigrant visa instead of adjusting status in the US, creating potential other obstacles and processing times delays in you actually getting your green card.
• Fraud can be spotted at any time even if you don’t apply for naturalization and successfully make it through adjustment of status. USCIS has 5 years within which to take your green card away (take it back) and deport you through the rescission process.  Section 246 of the Act says, “If, at anytime within five years after the status of a person has been otherwise adjusted under the provisions of section 245 … of this Act or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person if that occurred …”  But, even after five years, USCIS can throw you into removal proceedings and charge you with fraud claiming that you obtained your green card illegally because at the time of adjustment, you did not qualify because you had failed to disclose your unlawful employment. 
• If you you will have lied on the forms, you may be charged with document fraud.  Under §274C of the Act, this carries mandatory deportation from the United States.  Section 274C makes it unlawful: for a person knowingly (1) to forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a requirement of this Act. And  §241(a)(3)(C) says, Any alien who is the subject of a final order for violation of section 274C is deportable. 

• To make matters worse, to lie on federal forms in an effort to obtain an immigration benefit is a crime.  Section 1001 of the federal criminal code says that,

Whoever … makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned more than five years, or both.

Anyone who assists you in doing that (even your lawyer) can also be sentenced to prison.  It is wonderful that there is a second chance available to those who deviate from the rules.  That second chance is made available by consular processing, a process in which the consul assumes there has been unauthorized employment.  The penalty you are paying is that you must make the visa application abroad but there is no other penalty.      

Other possible reasons an adjustment case could be denied, include:

• Committing certain crimes
• Polygamy – marrying more than one person at the same time
• Former, current, or plans of prostitution
• Drug Trafficking or Possession
• Membership in Nazi or Communist party
• Selling trade secrets, working to overthrow US govt, engaging in genocide, or engaging in espionage (spy), or terrorist activity or membership in a group considered by the US govt to be a terrorist organization;
• Arrests or Admissions to Illegal Conduct
• Helping another noncitizen enter the country illegally
• Alcoholism or HIV, or other serious health issue
• Entering the U.S. Illegally (without being inspected by a CIS officer)
• Previous deportation or exclusion from the U.S.
• Working unlawfully
• Improper filing or no current visa number available;
• Using false documents (someone else’s passport/id, etc.)  and more . . .

The above information is general in nature and is not intended to be considered or relied upon as legal advice.  You should always consult an attorney to determine if you are eligible to apply for adjustment of status and the benefits and potential hazards in doing so, in your particular case.