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Exploring Change of Status and Adjustment of Status
by Phil on Jun 4, 2024 3:46:46 PM
Introduction
You might have heard the terms “Change of Status” and “Adjustment of Status” as they apply to U.S. visas. But do you understand the difference? Change of Status involves switching from one nonimmigrant status to another, such as changing from H4 to F1 to further your education in the United States.
On the other hand, Adjustment of Status is the process by which nonimmigrants in the United States apply for permanent residency, commonly known as a Green Card, typically through family- or employment-based channels. In this article, we’ll explore the differences between changing and adjusting your status, as well as the processes for each.
What Is Change of Status?
Defining Change of Status
If you’re in the United States and want to change your visa type, you go through a process called Change of Status. This lets you switch from one nonimmigrant visa category to another without leaving the country. To change your status, you must submit a Form I-539 application to the USCIS before your current status expires.
As an example, you may have just been laid off from your H1B job, putting you in an uncertain situation. To avoid having to leave the United States, you decide to pursue a Change of Status from H1B to F1. This shift allows you to enroll in a Day 1 CPT program, granting you the opportunity to continue your studies while gaining practical work experience and advancing your career.
By changing from H1B to F1 status, you’re not only addressing immediate visa concerns but also taking advantage of a unique opportunity to redefine your career. By enrolling in a Day 1 CPT program, you maintain employment while pursuing your academic goals.
How to Change Your Status
One common route for nonimmigrant workers is to change to F1 status to further their education in the United States. Changing your status to F1 involves the following steps:
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Apply to an SEVP-certified school: Apply for admission to an institution approved by the Student and Exchange Visitor Program (SEVP), and get the admission letter.
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Obtain Form I-20: Secure the initial Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, from the school you’ve been accepted to.
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Ensure proper documentation: Confirm that the designated school official (DSO) notes the change of status in the Form I-20 to accurately reflect your intentions and status change.
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Pay the SEVIS fee: Complete payment of the I-901 SEVIS fee according to the instructions on the Department of Homeland Security website.
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Submit Form I-539 to the USCIS: Send the completed Form I-539, Application to Extend/Change Nonimmigrant Status,” to the USCIS to initiate the Change of Status process.
If you’re changing to F1 status, refrain from starting your program until the USCIS approves the status change, as enrolling before approval violates your visa status. If you’re not approved 15 days before your program begins, contact the school’s DSO and postpone your enrollment semester.
What Is Adjustment of Status?
Defining Adjustment of Status
If you’re currently in the United States on a temporary visa, such as those for studying or working, you may have the option to transition to permanent residency through a process called Adjustment of Status. This means you can stay in the United States while your application is processed, as long as you entered the country legally and meet certain requirements. If you don’t qualify for adjustment of status, you’ll need to apply through consular processing instead.
Adjustment of Status typically occurs through one of two primary pathways: family-based or employment-based. Family-based adjustments allow you to apply for permanent residency if you have a qualifying relative, such as a spouse, who is either a U.S. citizen or lawful permanent resident.
Meanwhile, employment-based adjustments of status enable you to obtain permanent residency through sponsored employment opportunities.
Family-Based Adjustment of Status
Transitioning from a nonimmigrant visa to permanent residency through family-based adjustment of status is relatively common. For instance, if you arrive on a student visa and marry a U.S. citizen, your spouse can sponsor your Adjustment of Status.
Eligibility for family-based adjustments requires that you meet specific criteria based on your sponsor’s citizenship status. Immediate family members typically qualify, including spouses, parents, and children under 21.
The process begins with the sponsor filing form I-130, Petition for Alien Relative. Upon approval, you can file Form I-485 for permanent residency. If you’re the immediate relative of a U.S. citizen, you may file these two forms concurrently.
Employment-Based Adjustment of Status
Employment-based immigrant petitions are also a common route to permanent residency. Usually, a sponsoring U.S. employer is required. However, some categories, such as EB1A and NIW, allow for self-petitioning. Criteria for employment-based petitions vary dependending on the category.
While approval of an employment-based immigrant petition is an important step toward a Green Card, it doesn’t automatically grant you permanent resident status. Once the petition is approved, and if your priority date is current, you can apply for Adjustment of Status by filing Form I-485. In some cases, you can concurrently file the employment-based petition and Form I-485.
For example, you may find yourself approaching the end of your H1B status. During your time as a researcher with your sponsoring employer, you’ve co-authored several papers and received numerous citations to your work, and your employer agrees to sponsor you for an EB1B petition as an outstanding researcher.
To prepare your EB1B petition, you gather documentation that demonstrates the eligibility of you and your employer–evidence of citations, evidence that you’ve conducted peer review, evidence of your company’s finances, and more. With the help of an immigration attorney, you file the petition. Once the EB1B petition is approved, you then file your I-485 to adjust your status and become a lawful permanent resident.
How to Adjust Your Status
Filing for Adjustment of Status is a complex, multi-step process. Here, we’ll look at the process for filing an employment-based adjustment:
- Meet eligibility requirements: Eligibility requirements include but not limited to be physically present in the United States and have entered the country with a valid visa; You need to have an approved I-130 (family-based) or I-140 (employment-based) petition if you are not filing a concurrent application; If you are in a preference category, your priority date must be current; Those on a K-1 fiancé visa must marry their U.S.-based spouse while the visa is still valid; If you were granted asylum or refugee status, you need to have waited at least one year,etc.
- Complete and file Form I-130 (family-based) or Form I-140 (employment-based).
- File for Adjustment of Status: If your I-140 petition is approved, file an I-485 application along with the required documents and fees. Once you’re approved, you’ll receive a Green Card and become a lawful permanent resident.
This process can be lengthy. Depending on factors such as the specific visa subcategory you’re applying for and the service center where your petition is handled, processing times for I-140 petitions can reach 14 months or more. Furthermore, processing times for I-485 can range from eight months to more than three years.
Change of Status vs. Adjustment of Status
Change of status and adjustment of status are two distinct processes within U.S. immigration law. Change of status refers to the process where a non-immigrant visa holder transitions to another non-immigrant visa category without leaving the United States. This process is generally quicker and involves less paperwork.
On the other hand, adjustment of status is the procedure used by eligible individuals to apply for lawful permanent resident status while still in the United States. This process is typically more complex and can involve longer processing times, as it moves the applicant from a temporary non-immigrant status to a permanent immigrant status.
Conclusion
Understanding the differences between Change of Status and Adjustment of Status is key to aligning your stay in the United States with your personal and professional goals. Whether you aim to continue your education, advance your career, or explore the country, we aim to help you make informed decisions. For personalized advice and support, please contact us today.