News & Insights

Legal Foundations:

Adjustment of Status Basics:

Adjustment of Status (AOS) allows eligible noncitizens to apply for a green card without leaving the U.S. if they meet specific criteria under Section 245 of the Immigration and Nationality Act (INA).

• Eligibility typically requires lawful entry into the U.S., but there are exceptions for those married to U.S. citizens.

Section 245(i) Exception:

• Individuals who entered without inspection may still adjust status if they qualify under INA § 245(i). This provision allows certain individuals who were otherwise ineligible for AOS to adjust their status if:
• A qualifying immigrant petition or labor certification was filed on or before April 30, 2001.
• They pay a penalty fee.

Parole After Release:

• If you were paroled into the U.S. following detention, this may satisfy the “lawful entry” requirement, allowing adjustment under INA § 245(a).

Asylum and Adjustment of Status:

A pending asylum application does not automatically bar adjustment of status through a U.S. citizen spouse. These processes are independent but can intersect under certain circumstances.

Process to Adjust Status:

1. Confirm Lawful Entry or Parole:

• Determine whether you were officially paroled into the U.S. upon release. This impacts eligibility for adjustment under INA § 245(a).

2. Marriage to a U.S. Citizen:

• File a family-based immigrant petition (Form I-130) through your U.S. citizen spouse. This establishes the relationship required for adjustment.

3. File Adjustment of Status Application:

• Once the I-130 is approved or concurrently filed, submit Form I-485 (Application to Register Permanent Residence or Adjust Status).
• Include documentation such as your marriage certificate, evidence of bona fide marriage, and proof of parole or eligibility under § 245(i).

4. Work Authorization and Travel:

• If your asylum-based Employment Authorization Document (EAD) is expiring, you can renew it while your green card application is pending.
• Apply for Advance Parole (Form I-131) to travel outside the U.S. without abandoning your application.

5. Interview and Decision:

• Attend a green card interview with USCIS to verify your eligibility and relationship.
• If approved, you will receive lawful permanent resident status.

Potential Challenges:

1. EWI and Unlawful Presence:

• If you entered without inspection and do not qualify under § 245(i) or were not paroled, you may face barriers to adjustment.

2. Concurrent Asylum and Adjustment Cases:

• While having a pending asylum case does not preclude adjustment, careful coordination is required to avoid complications.

Authoritative Sources:

• USCIS Adjustment of Status Overview
• Advance Parole Information
• INA Section 245(a) and (i)

Final Thoughts:

Navigating the adjustment of status process as an asylum seeker married to a U.S. citizen can be complex. Consulting with an experienced immigration attorney is crucial to ensure compliance with immigration laws and avoid complications.