Bars to Getting Your Green Card in the U.S. (“Adjusting Status”)

The rules concerning who is allowed to adjust status (get your green card in the U.S. without having to go through an overseas consulate) are complicated. If you entered the U.S. properly—by being inspected by an USCIS official and maintained your nonimmigrant status (in particular, didn’t let your visa expire or do anything unauthorized), you can probably get your green card without leaving the U.S. Most persons who marry U.S. citizens can adjust their status even if they have fallen out of status or worked without authorization, as long as they did not enter without being properly inspected, or as a crewman or stowaway. All others need to use the penalty and grandfather clause.

The Penalty and Grandfather Clauses

If you are out of status, have worked without authorization or entered the U.S. without inspection, you can apply for adjustment only if you are grandfathered, or included within the old rule (§245(i)) which allowed adjustment of otherwise ineligible applicants upon paying the $1,000 penalty fee. The old penalty law expired in the fall of 1997.

Presently, the only people who may still adjust status by paying a penalty are those who had a visa petition or Labor Certification on file by January 14, 1998, as well as those whose visa petition or Labor Certification was on file by April 30, 2001, and who can also prove that they were in the U.S. on December 21, 2000. (Unmarried children younger than 17 years old and the spouses or unmarried children younger than 21 years old of legalized aliens who are qualified for and have applied for benefits under the Family Unity program do not have to pay the penalty fee.)

Special Exception for Certain Employment-Based Green Card Applicants

If you are getting your green card through the First, Second or Third Preference employment category (as a priority worker, advanced degree professional, person of exceptional ability, or skilled worker, professional or other worker) or as a special immigrant, you can have worked without authorization or fallen out of status for up to 180 days and still apply to adjust status.

This exception applies only if at the time of filing the green card application, your last entry to the U.S. was legal, you have maintained continuous legal status and have not violated the terms of your status or other terms of admission, other than during a 180-day aggregate period.

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