Adjustment of Status

Non-citizens entering the U.S. illegally are NOT eligible to adjust status. They
must go back to their home country to consular process at a US Embassy or
Consulate abroad, unless an application that was approvable when filed was
filed on their behalf on or before April 30, 2001. This is former Section 245(i) of
the Immigration and Nationality Act. These individuals are permitted to stay in
the U.S. by paying a $1,000.00 fine in addition to all of the other fees required
to adjust their status.

There are other exceptions for individuals illegally present in the U.S. and who
may adjust status without going ‘home’ to their country of nationality/citizenship,
and these exception areas include class members of class action lawsuits and
persons who qualify under special legislation(for example, the Nicaraguan And
Central American Relief  Ac(NACARA)  ).

Adjustment of Status can also be accomplished through employment
relationships. The employer files an application for a Labor Certification with the
U.S. Labor Department.    The employer starts through the State Workforce
Agent(SWA) in the State in which the employee is to be hired. The SWA
contacts the employer and sends a packet of materials to the employer which
must be precisely complied with; the job qualifications and duties, rate of pay,
and other details must be set forth in advertisements published on the internet
and in newspapers of general circulation in the area where the employment is
to be carried out. The employer must post the job within the company as well. Complete and careful records of all prospective applicants must be kept. All of
the advertisements, interview results, and other records are then sent to the
SWA which, in turn, sends it to the US Labor Department for review. If approved,
the Labor Certification is issued, and the employer files a form I-140 with the
Labor Certification attached within a specified short time frame. At the same time
the I-140 is filed, the employer may also file an I-485 adjustment package along
with an application for work authorization. The Labor Certification process is
now done online under new regulations designated as PERM, and can be very quickly accomplished. The I-140 can also be quickly processed(6 months to
One year).
However, as in the case of preference family based-petitions for green cards,
employment based applications are subject to the per annum visa cap(limit) on
visas. Sometimes it can be up to one or two years for those visa numbers to
come current.

All employment based applicants for lawful permanent residence through
adjustment of status must have come to the U.S. lawfully, must maintain status
while here and may not work without authorization from USCIS.

These processes of adjustment of status are complex and require, in most
instances, the assistance of an immigration attorney.

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