Who Qualifies for Adjustment of Status Without Leaving the Country?

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If none of the aforementioned options apply to you and you have to leave the country, there are still a few more options to make it easier for you. For instance, if your US citizen spouse filed an I-130 family-based petition for you, and assuming there are no other grounds of inadmissibility, then you can file a waiver for unlawful presence.  

If you are in the United States and, before leaving for your interview, you file a provisional waiver for unlawful presence that is based on the hardship that your US citizen or resident spouse or parent would have during the time you are gone, you would leave for your interview for a few weeks instead of leaving for years. If all goes well in the interview and after you pass inspection, you would be considered a lawful permanent resident.

The problem is that you won’t have a work permit in the meantime, and the process is lengthier. That is why, before going down that route, it is very important to exhaust all possibilities of adjusting status without having to leave the country, since there might be other alternatives for you or your loved ones.

For anyone who is working through an immigration process to become a resident, few things are more dreadful than the idea of having to leave the United States for an immigration interview abroad. Especially if you have been living here for many years, just the thought of getting a denial for your request is enough to leave you overwhelmed.

However, if you qualify for Adjustment of Status, you could complete your immigration process (for example, your I-130 family-based petition) within the United States and without having to leave the country once. Who qualifies and what are the benefits? Keep reading to find out more.

Is getting your green card through adjustment of status an available option for you? You might have been told in the past that you don’t have a case, but you might be surprised after you consult with a licensed immigration attorney. An immigration attorney can answer your questions and find the right option for you to get you your legal permanent residency. 

The Benefits of Adjustment of Status

One of the most noteworthy benefits of adjusting status is that you won’t have to travel abroad for an immigration interview. This in itself is a big deal, mostly because going abroad is typically costlier and the process takes longer. It is also riskier, because your case can be denied and you don’t have as many rights abroad as you do here.

Another important difference between adjusting status here versus having to leave, is that, after you qualify for adjustment of status, you can get some sort of work permit and travel permit, whereas if you don’t qualify and need to go abroad for your interview, you won’t have a work permit nor travel permit in the meantime, which can make the whole process harder.

It is clear, then, that you should see if you qualify to adjust your status here, in the United States, before you try to pursue any other option. A professional immigration attorney can help you analyze your individual circumstances to see where you stand.

Who Qualifies for Adjustment of Status?

First, you can qualify for adjustment of status without leaving the country if you can prove lawful entry. A lawful entry means that you entered with inspection and with a valid document into the United States. If this is your case and you are filing a family-based petition, then you can do the whole immigration process here with adjustment of status.

Regarding a lawful entry with inspection, it is noteworthy to mention that, if you were just waved in at the land border and maybe you didn’t even get your passport stamped, or perhaps you didn’t have valid documents with you but you were waved in, that could count as an inspection and lawful entry. The tricky part, however, is proving that you were waved in, but it is possible to present evidence and this needs to be considered on a casa by case basis.  

Another factor to consider if you are trying to adjust status through a family petition, is who is the one petitioning you. For instance, if your family-based petition is through a US citizen spouse or a US citizen child, then you can adjust status even if you overstayed your visa or were just waved in. But if the one petitioning you is, for example, your US citizen sibling or you are the adult child of a US, then you will not be considered an immediate relative and you won’t be able to adjust status if you overstayed your travel document, even if you had a lawful entry with inspection.

The second way through which you may qualify to adjust your status is under section 245(i) of the Legal Immigration Family Equity Life Act. To qualify for this provision, you must be the beneficiary of a labor certification application or immigrant visa petition filed on or before April 30, 2001. 

Some people who have 245(i) are unaware of it. For example, perhaps you were the minor child or the spouse of the beneficiary at the time, and you may have it too. Even if you are divorced from that person, but back then you qualified as a beneficiary of that petition, you might have your own 245(i). There are other details to consider, so your best option is to ask an immigration attorney.

Other ways in which you may qualify for adjustment of status and not have to leave the country are if you have Temporary Protected Status (TPS) or some form of advanced parole or travel permit. For example, people with DACA may qualify for an advanced parole and get a travel permit for humanitarian, educational, or business reasons. After you leave the country and return with your advanced parole, then that counts as your lawful admission for adjustment of status.

Lastly, you might qualify to immigrate in the United States without having to leave the country if you have a U visa or qualify for VAWA. A U visa can be granted for people who were victims of violent crimes and who then cooperated with law enforcement to the best of their capacity. The downside is that it might take years of waiting for you to get a U visa and then your green card, but it is a great option for those who have no other way to immigrate, such as if you have a permanent bar and cannot immigrate through family.

And regarding VAWA, this provision is available for abused spouses or parents of US citizens or lawful permanent residents. If you suffered or are suffering certain abuses, mistreatments, extreme cruelty, or things alike, then you might be able to qualify for VAWA and adjust your status withing the United States. There are many misconceptions regarding VAWA. For example, some believe that abuse can only be physical, when this is not true. Check with a professional immigration attorney to see if this is an option for you.

What Happens if You Need to Leave the Country?

If none of the aforementioned options apply to you and you have to leave the country, there are still a few more options to make it easier for you. For instance, if your US citizen spouse filed an I-130 family-based petition for you, and assuming there are no other grounds of inadmissibility, then you can file a waiver for unlawful presence.  

If you are in the United States and, before leaving for your interview, you file a provisional waiver for unlawful presence that is based on the hardship that your US citizen or resident spouse or parent would have during the time you are gone, you would leave for your interview for a few weeks instead of leaving for years. If all goes well in the interview and after you pass inspection, you would be considered a lawful permanent resident.

The problem is that you won’t have a work permit in the meantime, and the process is lengthier. That is why, before going down that route, it is very important to exhaust all possibilities of adjusting status without having to leave the country, since there might be other alternatives for you or your loved ones.

Obtain Your Green Card with the Help of a Licensed Immigration Attorney

The process of immigration can be overwhelming because there are just too many details to consider. I'd be more than happy to answer your questions and help you find the best option for you. I’m a dedicated and passionate immigration attorney, fluent in English and Spanish, located in the Los Angeles area. Call (310) 803-3040 or visit https://abaudlegal.com/appointment/ to schedule an appointment.

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About the Author Sharon Abaud, Esq.

If you have any questions about your Immigration Status, I'd be happy to help. I’m a dedicated and passionate immigration attorney, fluent in English and Spanish, located in the Los Angeles area. Your immigration case matters to me.

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