There has been a lot of excitement since it was announced that the F2A category (family petition green cards) for spouses and children (21 and under) of lawful permanent residents will be current in August of 2013. In the excitement, however, it is a good idea to review the requirements for adjustment of status that are applicable to all immigrants, and then remember that some of them are waived in certain cases but not in others.
If you plan to apply for status from the F2A category and are not eligible for relief under an old section of law called 245(i), you may not be able to adjust your status inside the United States even if the F2A category is current, and you would have to go through consular processing abroad.
Adjustment of status inside the United States has various requirements under different sections of the law. One section has the basic requirements that an alien who applies for adjustment must be “admissible”, eligible for a visa, and that a visa must be immediately available to him or her at the time the application is filed. When an immigrant’s correct preference category becomes current, the last two of those requirements are met. The requirement that the immigrant be “admissible”, however, has to be met separately on the basis of each person’s immigration and criminal history.
A different section of the law has additional requirements excluding certain types of immigrants and excluding aliens who worked without authorization, violated the terms of their legal status, or are not in status at the time of filing their application. Parts of that section exempt “immediate relatives” (spouses, minor children, and parents of U.S. citizens) from a lot of those additional requirements, as does former section 245(i) of the Immigration and Nationality Act. To be protected by former section 245(i) a person has to be the beneficiary of a visa petition (I-130) or labor certification (I-140) that was (1) approvable when filed, and (2) filed prior to April 30, 2001. If the petition or certification was filed between January 14, 1998 and April 30, 2001, it is also required that the person have been physically in the U.S. on December 21, 2000.
This may not matter for beneficiaries who are abroad, but aliens in the United States who are neither “immediate relatives” or covered under former section 245(i) are not exempted from the additional requirements for adjustment of status, and the fact that their preference category is “current” does not mean that their applications can be approved.
If you have been in the United States without status, or have worked without authorization, and plan to adjust your status through a spouse who is a permanent resident, you may wish to meet with an attorney before filing to ensure that you are eligible for adjustment. You may schedule a consultation with our office by calling (312) 641-0771.