Adjustment of Status

The Adjustment of status (AOS) procedure is designed to permit aliens who have been admitted to the United States as non-immigrants or who have been paroled into the country to apply for admission as permanent residents without leaving the country. These non-immigrants must establish that they are admissible permanently, meeting the same standards as aliens who use consular processing to obtain a permanent resident visa. Aliens seeking AOS must also comply with requirements peculiar to the AOS process. Aliens who do not meet these additional requirements will be required to use consular processing to obtain an immigrant visa, which will necessitate a departure from the United States. Aliens admitted in certain non-immigrant statuses may encounter more difficulties (and may not be successful) adjusting status than aliens admitted in other non-immigrant statuses. Investors should consult with immigration counsel regarding these issues before the I-526 petition is filed.

An alien investor or the investor’s spouse or children who are eligible for CLPR may not be eligible for AOS if they: (1) are or were employed in the U.S. without authorization; (2) were not in lawful status on the date their AOS application was filed or if they failed to maintain lawful status thereafter; (3) were ever out of status during earlier admissions to the U.S.; (4) are admitted in certain non-immigrant statuses, such as “A”, “G”, “E” or “J” (unless the two-year foreign residency requirement has been satisfied, does not apply or a waiver of the requirement has been obtained); (5) have been in removal proceedings in the ten years prior to seeking AOS; (6) were admitted under the visa waiver program at the time AOS is sought; (7) obtained CLPR as the spouse of a U.S. citizen or as the son or daughter of a spouse of a U.S. citizen and have not abandoned this CLPR prior to seeking AOS; (8) are likely at any time to become a public charge, taking into account the age, health, family status, assets, resources, financial status and education and skills of the applicant; or, (9) obtained admission to enter the U.S. as a non-immigrant (temporarily) by misrepresenting that they would depart the U.S. when their temporary period of admission expired. Unless the adjustment applicant is admitted to the U.S. in H-1B, I-1 or I-1 non-immigrant status, this misrepresentation may be deemed to have occurred if the alien investor, admitted as non-immigrant, demonstrates immigrant intent within 60 days after admission. Investors should seek competent legal counsel to advise them on Adjustment of Status in EB-5 applications for themselves, their spouse and their children.

During AOS processing, the applicant will be required to submit a medical examination and will receive instructions from USCIS regarding biometric data collection and an interview. The interview may be waived by USCIS, at the discretion of USCIS. There is no formal process to request the waiver of an interview. If the investor is interviewed, the spouse and children of the investor will be required to attend the interview.

The USCIS California Service Center currently has jurisdiction of the AOS process for investors in the Project. It will schedule the interview of investors in the Project. The interview follows this processing and is conducted at a USCIS office near the investor’s residence. USCIS uses the interview to update information about AOS applicants that may have changed subsequent to the filing of the AOS application and to explore any issue that USCIS believes is relevant to deciding the AOS case. Typically, CLPR is conferred on approved AOS applicants at the conclusion of the interview.

Travel During Adjustment Of Status Processing

An alien investor who leaves the United States without advance permission while an AOS application is pending is deemed to have abandoned that application unless the applicant has been admitted in and continues to hold valid h or l non-immigrant status pending adjudication of the AOS application.

If an alien is deemed to have abandoned an AOS application, the applicant must seek consular processing by arranging for the case to be transferred from the jurisdiction of USCIS to the jurisdiction of the U.S. Department of State consular services, a process that may add about one year to the time before an applicant is accorded CLPR. During the period between the applicant’s deemed abandonment of an AOS application and the time the applicant receives an immigrant visa from a us consulate, the applicant is required to remain outside the U.S. unless the applicant has or obtains non-immigrant status that permits presence in the U.S. pending an application for CLPR, typically h or l non-immigrant status. Applicants should consult with counsel about the risks of seeking non-immigrant admission during this period.

Advance permission to depart the U.S. is issued routinely if the alien articulates a bona fide need to travel. It is not necessary to demonstrate an emergent need to travel; any purpose not contrary to law is usually deemed sufficient. Advance permission, known as advance parole, is usually granted for multiple entries during the time required to complete the AOS process, but not longer than one year. It may be necessary to re-apply for advance parole if the AOS process is not complete within a year.

Advance parole is not available to aliens who are outside the U.S. It is important for AOS applicants who wish the right to travel to make application for advance parole while they are in the U.S. they must remain in the U.S. until advance parole is granted to avoid abandonment of the AOS application. Advance parole applications may take about 60-90 days to be granted.
Processing times may be longer if an applicant is subjected to extended background checking. In demonstrated emergent circumstances, an AOS applicant may seek expedited advance parole.

Alien investors admitted to the United States in any non-immigrant status who have obtained advance parole during the AOS process should consult with immigration counsel before traveling. Re-admission to the U.S. using the advance parole document may jeopardize the non-immigrant status of the alien’s family members who did not travel. The consequences, if any, of this situation should be examined prior to travel.

Employment During The Adjustment Of Status Processing

Applicants for AOS who wish to work in the United States must obtain employment authorization unless they have been admitted to the U.S. in a non-immigrant status that confers employment authorization and does not end before AOS is granted. Self-employment requires employment authorization.

Employment authorization applications currently take 60-90 days to be adjudicated. Processing times may be longer if an applicant is subjected to extended background checking. Employment authorization is usually granted during the time required to complete the AOS process, but not longer than one year. It may be necessary to re-apply for employment authorization if the AOS process is not complete within a year. To avoid a lapse in employment authorization re-applications should be made sufficiently in advance of the expiry of existing authorization. Employment in the U.S. without authorization is a violation of immigration status and may jeopardize the right to adjust status.

Adjustment Of Status

AOS is granted in the discretion of USCIS. An alien whose AOS application has been denied may request that the case be re-considered by the same office that denied AOS. If the request to re-open or re-consider the case is denied, or, if, after such a review, the alien fails to convince this office to reverse its original decision, the alien is without further recourse.

Aliens admitted in unexpired non-immigrant status who are denied AOS to CLPR are usually entitled to remain in the U.S. in that non-immigrant status and if eligible may seek an extension of that non-immigrant status or seek a change to a different non-immigrant status for which they are qualified. At such time as the alien’s non-immigrant status expires, the alien is expected to depart the U.S. If at the time of the denial of AOS, the alien’s non-immigrant status was expired, the alien is expected to depart the U.S. failure to depart timely is a violation of U.S. immigration law and regulation which may effect the ability of the alien to qualify for future immigration benefits.

If an alien investor is admitted to the U.S. in a non-immigrant status (pending AOS), the spouse and children of the alien investor are frequently admitted in collateral non-immigrant status for a time coincident with the authorization of the investor to remain in the U.S. if AOS is not granted to the alien investor and the investor’s non-immigrant status expires, the status of the spouse and children will be deemed to have expired at the same time. They, too, will be expected to depart the U.S. at that time.

AOS applicants should not make any permanent connections to the United States or change any permanent living, employment, schooling or other lifestyle arrangements in their country of residence before they are issued AOS based upon an approved I-526 petition.