Adjustment eligibility by category
| Applicant | Potential Adjustment Route | Major Issue to Check |
|---|---|---|
| Spouse of U.S. citizen | INA §245(a) | Admission/parole, admissibility, marriage-based eligibility |
| Parent of U.S. citizen 21+ | INA §245(a) | Admission/parole and admissibility |
| Qualifying child of U.S. citizen | INA §245(a) | Age, relationship, admission/parole |
| Family-preference beneficiary | INA §245(a) | Visa availability and §245(c) bars |
| Employment-based immigrant | INA §245(a), possibly §245(k) | Status, employment violations, priority date |
| §245(i) grandfathered applicant | INA §245(i) | Grandfathering and admissibility |
| VAWA self-petitioner | Special §245 rules | VAWA statutory exceptions |
| Special immigrant juvenile | INA §245(h) | SIJ adjustment and inadmissibility rules |
| T nonimmigrant | INA §245(l) | Physical presence and category requirements |
| U nonimmigrant | INA §245(m) | Continuous presence and cooperation requirements |
| Refugee | INA §209(a) | Refugee-specific eligibility |
| Asylee | INA §209(b) | One year physical presence and asylee requirements |
| Qualifying Cuban national | Cuban Adjustment Act | CAA-specific statutory requirements |
Spouse of a U.S. citizen
The spouse of a U.S. citizen is one of the most favorable ordinary adjustment categories because immediate relatives are exempt from several INA §245(c) restrictions.
A person who was inspected and admitted or paroled may potentially adjust even after:
- A visa overstay;
- Failure to maintain nonimmigrant status; or
- Unauthorized employment.
Parent of a U.S. citizen
A parent of a U.S. citizen may qualify as an immediate relative when the petitioning U.S. citizen is at least 21 years old.
The parent may receive the same important immediate-relative exemptions from specified status and employment bars.
However, the parent must still independently satisfy applicable requirements involving:
- Inspection and admission or parole;
- The qualifying parent-child relationship;
- Admissibility;
- Affidavit of Support where required; and
- Discretion.
Child of a U.S. citizen
A qualifying unmarried child under 21 of a U.S. citizen may qualify as an immediate relative.
The analysis can involve:
- Biological parentage;
- Stepchild relationships;
- Adoption;
- Legitimation;
- Age;
- Marital status; and
- Child Status Protection Act rules where applicable.
Family-preference immigrants
Family-preference beneficiaries may include:
- F1 unmarried adult sons and daughters of U.S. citizens;
- F2A spouses and qualifying children of permanent residents;
- F2B unmarried adult sons and daughters of permanent residents;
- F3 married sons and daughters of U.S. citizens; and
- F4 brothers and sisters of adult U.S. citizens.
Unlike immediate relatives, preference applicants generally must pay close attention to:
- Priority dates;
- Visa Bulletin availability;
- Continuous lawful status;
- Unauthorized employment;
- Other §245(c) restrictions; and
- Derivative eligibility.
Employment-based immigrants
Qualifying employment-based immigrants may adjust in EB-1 through EB-5 and certain EB-4 categories when the statutory requirements are satisfied.
Common adjustment issues include:
- Priority-date availability;
- Lawful status at filing;
- Unauthorized employment;
- INA §245(k);
- Valid underlying I-140;
- Continuing job offer where required;
- Supplement J;
- AC21 portability; and
- Derivative spouses and children.
Employment applicants protected by INA §245(k)
Some employment-based applicants remain eligible despite limited immigration violations.
INA §245(k) can excuse qualifying periods of:
- Failure to maintain lawful status;
- Unauthorized employment; and
- Other violations of the terms and conditions of admission.
The aggregate covered period must generally not exceed 180 days after the relevant lawful admission.
See INA §245(k).
Grandfathered applicants under INA §245(i)
INA §245(i) can permit qualifying grandfathered applicants to adjust despite problems that would otherwise prevent ordinary §245(a) adjustment.
It can potentially benefit a person who:
- Entered without inspection;
- Overstayed;
- Worked without authorization;
- Failed to maintain lawful status; or
- Falls within another ordinary subsection (c) bar.
See INA §245(i).
VAWA self-petitioners
VAWA self-petitioners receive important statutory protections within the adjustment framework.
Those provisions can alter ordinary rules involving:
- Admission or parole;
- INA §245(c) adjustment bars;
- Unauthorized employment;
- Failure to maintain status; and
- Certain inadmissibility or waiver issues.
A VAWA adjustment case should be analyzed under the specific VAWA provisions rather than by mechanically applying every ordinary family-based adjustment restriction.
Special immigrant juveniles
INA §245(h) provides specialized adjustment treatment for qualifying special immigrant juveniles.
Among other provisions, Congress treats qualifying SIJs as paroled for purposes of the INA §245(a) entry requirement.
SIJ adjustment also has specialized rules concerning:
- Adjustment bars;
- Inadmissibility;
- Waivers;
- Visa availability; and
- Discretion.
T and U nonimmigrants
Congress created specialized permanent-residence provisions for qualifying T and U nonimmigrants.
These cases do not simply apply the ordinary §245(a) requirements.
The governing statutes include category-specific requirements involving matters such as:
- Required periods of physical presence;
- Continuing eligibility;
- Good moral character or cooperation requirements where applicable;
- Admissibility and waiver rules;
- Derivative family members; and
- Discretion.
Refugees and asylees
Refugees and asylees adjust under INA §209 rather than ordinary INA §245(a).
A refugee generally undergoes the permanent-residence process after one year following refugee admission, subject to the governing requirements.
An asylee may generally seek adjustment after at least one year of physical presence following the grant of asylum, subject to INA §209(b).
Cuban Adjustment Act applicants
The Cuban Adjustment Act provides an independent statutory pathway to permanent residence for qualifying Cuban nationals and certain spouses or children.
The analysis includes specialized requirements involving:
- Cuban nationality;
- Inspection and admission or parole as required by the statute and governing law;
- Physical presence;
- Admissibility;
- Derivative eligibility; and
- Discretion.
The ordinary INA §245(c) bars do not necessarily operate in the same manner in a CAA case.
Cuban Adjustment Act cases use a separate statutory adjustment framework rather than ordinary INA §245(a) alone. See Cuban Adjustment Act for the category-specific eligibility rules.
Visa Waiver Program entrants
INA §245(c)(4) generally restricts adjustment after Visa Waiver Program admission but contains an exception for immediate relatives of U.S. citizens.
A qualifying VWP immediate relative may therefore seek adjustment, including in circumstances where the 90-day admission period has expired.
K-1, K-2, K-3, and K-4 entrants
K nonimmigrants face special adjustment restrictions under INA §245(d).
A K-1 generally must adjust through the qualifying marriage to the same U.S. citizen who filed the fiancé petition, with the marriage occurring within the required 90-day period.
K-2, K-3, and K-4 applicants have their own related statutory and regulatory requirements.
See K Visa Adjustment.
Identifying a Category Does Not Establish Form I-485 Eligibility
Finding a possible adjustment category is the first step. The applicant must still determine whether the requirements for filing and approval are satisfied.
Depending on the category, the remaining analysis can include physical presence, inspection and admission or parole, visa availability, statutory adjustment bars, inadmissibility, jurisdiction, required evidence and favorable discretion.
For the technical eligibility analysis after identifying the potential pathway, see Form I-485 Eligibility.
Frequently asked questions
Can anyone with an approved immigrant petition adjust status?
No. Petition approval and adjustment eligibility are separate. Entry, status, visa availability, adjustment bars, admissibility, jurisdiction, and other requirements still apply.
Can someone who overstayed adjust status?
Sometimes. Immediate relatives of U.S. citizens receive important exemptions, employment applicants may qualify under §245(k), and grandfathered applicants may qualify under §245(i).
Can someone who entered illegally adjust status?
Ordinary §245(a) generally requires admission or parole. INA §245(i), VAWA, SIJ, later qualifying admission or parole, or another statute may change the result.
Can someone in removal proceedings adjust status?
Potentially. Eligibility and jurisdiction must both be analyzed. Depending on the case, USCIS or an immigration judge may have authority over the adjustment application.
Can an employment-based immigrant adjust after violating status?
Potentially. INA §245(k) can excuse qualifying violations totaling no more than 180 days after the relevant lawful admission.
Can a refugee or asylee file Form I-485?
Yes, when the category-specific requirements are satisfied, but refugee and asylee adjustment is governed primarily by INA §209 rather than ordinary INA §245(a).
Can someone outside the United States adjust status?
No. Adjustment through Form I-485 requires physical presence in the United States. A beneficiary abroad generally seeks an immigrant visa instead.