Process and timing
Adjustment of status
Also called AOS, I-485 route.
Adjustment of status is the process under 8 U.S.C. 1255 by which someone already in the United States becomes a permanent resident without leaving, on Form I-485, instead of collecting an immigrant visa at a consulate abroad. An EB-5 investor who adjusts is granted conditional permanent residence for two years, the same status a consular applicant receives on admission.
What it decides
8 U.S.C. 1255(a) requires that the applicant was inspected and admitted or paroled, is eligible for the immigrant visa and admissible, and that "an immigrant visa is immediately available to him at the time his application is filed". 8 CFR 245.1(a) and 245.2(a)(2)(i)(A) repeat that availability test, and 8 CFR 245.1(g)(1) measures it against the Department of State Visa Bulletin. For EB-5 the concurrent filing rule is statutory rather than regulatory: 8 U.S.C. 1255(n), added by the Reform and Integrity Act on 15 March 2022, provides that where approval of the I-526 or I-526E would make a visa immediately available, the I-485 is properly filed whether submitted with the petition or after it. The older regulation at 8 CFR 245.2(a)(2)(i)(B) still lists only 203(b)(1), (2) and (3) and does not reflect this. A pending I-485 does not by itself authorize work or travel. 8 CFR 274a.12(c)(9) places adjustment applicants among "aliens who must apply for employment authorization", meaning Form I-765 and a granted document. Travel needs advance parole under 8 CFR 212.5(f), requested on Form I-131, and 8 CFR 245.2(a)(4)(ii)(A) treats departure without it as abandonment, subject to the exceptions in (C) and (D) for applicants holding lawful H-1, L-1, H-4, L-2, K-3, K-4 or V status. INA 245(k) lifts the bars at 245(c)(2), (c)(7) and (c)(8) where violations since the most recent lawful admission total no more than 180 days in the aggregate, and the Reform and Integrity Act extended it to the fifth preference on 15 March 2022 by substituting "(3), or (5)" for "or (3)". It requires presence pursuant to a lawful admission, which parole is not under 8 U.S.C. 1101(a)(13)(B). Approval grants status on a conditional basis under 8 CFR 245.1(h) and INA 216A.
Where this is explained properly
Pages here that go into adjustment of status rather than mentioning it.
Related terms
- Concurrent filingConcurrent filing is submitting Form I-485 together with Form I-526 or I-526E, or while the petition is still pending, instead of waiting for the petition to be approved. 8 U.S.C. 1255(n) permits it whenever approval of the petition would make a visa immediately available to the investor.
- Consular processingConsular processing is the route to permanent residence through a US embassy or consulate abroad, on Form DS-260 and an interview, rather than by adjusting status inside the United States. It is the only route for an investor who stays outside the country, and it is open by choice to one already inside.
- BacklogBacklog is the demand already waiting ahead of an investor in the same visa category, the same country of chargeability and, since the 2022 set-asides, the same reserved or unreserved pool, which must be worked through before a visa number reaches them.
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