Step 3 of the Green Card Process:
Application for Permanent Residence

Adjustment of Status in the United States and Immigrant Visas Issued Abroad

The final stage of the employment-based green card process is to actually apply for
Lawful Permanent Residence (“LPR”). There are two different ways to apply for LPR – by applying to Adjust Status to Permanent Residence while in the United States or applying for an immigrant visa abroad. Regardless of which process is followed, the foreign national must prove that s/he is not inadmissible under health-related, criminal, or security grounds; immigration violations or illegal entry grounds; misrepresentations made for immigrant benefits; public charge; among other grounds.

To apply for adjustment of status in the United States, the foreign national must not only be admissible, but must also be lawfully present and be eligible to adjust based on a pending and approved I-140 petition. To be lawfully present, a foreign national must have been inspected by an immigration officer at the port-of-entry and have maintained his/her immigration status. There are two exceptions to the requirement that the foreign national maintain status in employment-based cases. INA §245(k) allows a foreign national to adjust status based on employment so long as s/he has not been out of status for more than 180 days. INA §245(i) permits aliens who either entered without inspection or who entered lawfully with a visa but overstayed that visa, to adjust status to permanent residence as long as an I-130 relative petition or a labor certification application was filed on their behalf on or before April 30, 2001 and they were physically present in the U.S. on December 21, 2000.

Foreign nationals living in the United States in lawful temporary visa status generally seek employment-based LPR status by filing an I-485 Application to Adjust Status to Permanent Residence. That process includes securing medical, criminal, and security clearances.

LPR status can also be secured by applying for an immigrant visa abroad. That application commences with the filing of forms with the National Visa Center of the U.S. Department of State and culminates in an interview at a U.S. consulate in the home country of residence. Immigrant visa applicants must also undergo medical, criminal, and security clearances.

The Visa Bulletin

Applicants for adjustment of status or immigrant visas may only apply for such benefits
when an immigrant visa number is immediately available to them. Visas are allocated annually by Congress. Each preference category (EB-1, EB-2, etc.) is allocated a certain proportion of these visas for each country. At any given time, there could be a backlog in the availability of visas for certain preference categories and for certain high immigration countries (such as India, China, Mexico, Philippines). The State Department reports the number of visas available to each category on a monthly basis in what is called the “visa bulletin.”

The date that establishes the foreign national’s place in line is called the “priority date.” In employment-based cases the priority date is generally established upon the filing of the labor certification application after securing approval of the I-140 petition. In cases where no labor certification is required, the priority date is established upon the filing of the I-140 petition.

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