Thailand Visa Law
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Adjustment of Status: General Requirements

What is Adjustment of Status?
Adjustment of status is the procedure for becoming a lawful permanent resident without the necessity of leaving the United States. It is different from the customary method of gaining permanent residence: application for an Immigrant (IR-1, CR-1) abroad .

Rules regarding adjustment of status are found at §245 of the Immigration and Nationality Act ("INA"). In accordance with INA §245(a): the status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:

1. the alien makes an application for such adjustment,
2. the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
3. an immigrant visa is immediately available to him at the time his application is filed.

In order to adjust status, an immigrant visa must be immediately available to the alien when his or her adjustment application is filed. This is not a problem in the case of a K-1 or K-3 Visa holders because an unlimited number of “green cards” (permanent residence cards) can be issued to immigrants who are immediate relatives, i.e. spouses. An adjustment of status application should be filed with the USCIS district director in the district of the applicant's residence.

The Discretionary Nature of Adjustment of Status
It should be noted that adjustment of status is discretionary. USCIS can, and sometimes does, deny an application for adjustment of status even when there is no specific statutory reason to do so.
In reality, USCIS grants adjustment of status when the alien is eligible by statute and there are no "negative factors." When there are negative factors, these factors will be weighed against “positive factors” in order to judge whether adjustment will be granted. A close kinship, like a spousal relationship, will likely be a strong factor favoring approval of adjustment.
If an applicant enters the United States on a non-immigrant visa (ex. Tourist Visa) with the intent to remain in the US this may be viewed as an attempt to perpetrate a fraud against the USCIS, this could lead to criminal penalties and possible deportation of the immigrant/applicant. Even if this course of action does not meet the definition of fraud or willful misrepresentation, it will likely be a sufficient “negative factor” to deny the applicant’s adjustment of status.

Adjustment of Status and the Necessity of Advance Parole
8 CFR §245.2(a)(4)(ii), states that an application for adjustment of status will be considered abandoned if the alien/applicant departs the United States while awaiting approval of his or her application.
The alien/applicant can apply for advance parole prior to departure from the United States to guarantee that his or her application will not be deemed to have been abandoned. Advance parole is an option for any alien/applicant with a legitimate personal or business reason.

Adjustment of Status in Relation to the K-1 and K-3 Visa
Aliens who are temporarily admitted under either a K-1 fiancé visa or a K-3 spouse visa may only be adjusted to conditional permanent residence. The United States citizen who filed the K-1 or K-3 petition must also file the petition for adjustment of status. All immigrants who are in the US on conditional permanent resident status are ineligible for adjustment of status. However, once conditional residence is terminated (2 years has passed) the immigrant may petition to have the conditional status lifted and the immigrant is thereafter a permanent resident.

Adjustment of Status      Child Immigrants       Income Requirements

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