Adjustment of Status and Waiver of Inadmissibility

Once an alien is in deportation or removal proceedings, his/her application for adjustment of status must be made and considered only in those proceedings. In this situation, AOS means change of nonimmigrant status to permanent resident status. The application is made before an Immigration Judge. An otherwise inadmissible alien may be eligible for a particular waiver of inadmissibility and may apply for that waiver and for AOS in a deportation proceeding. Moreover, since the AOS provision applies to immigrants as well as non-immigrants, a permanent resident who is found to be removable, but is otherwise eligible for a waiver of inadmissibility, may seek AOS in the pending removal proceeding.

The burden of proving eligibility for AOS is upon the alien. To be eligible for adjustment of status to permanent resident, he/she must prove lawful immigration status, i.e., (1) lawful admission into the United States; or (2) eligibility for or immediate availability of an immigrant visa. The alien is also required to continuously maintain lawful status. The following classes of persons are excepted: (1) immediate relatives of a United States citizen; (2) foreign medical graduates and their spouses and children; (3) certain officers and employees of international organizations and their spouses and children; (4) aliens declared dependent on a juvenile court located in the United States; and (5) aliens who have served honorably, or are enlisted to serve, in the United States Armed Forces under certain conditions and their spouses and children.

The Attorney General, at his discretion, may waive inadmissibility on certain grounds: (1) inadmissibility on health-related grounds in some cases (e.g., if the applicant has an immediate family member who is a United States citizen, lawful permanent resident, or has been issued an immigrant visa; if the applicant undergoes vaccination; or if the applicant with a mental disorder posts a bond); and (2) inadmissibility on criminal grounds in certain cases (e.g., a crime of moral turpitude; multiple criminal convictions; simple possession of 30 grams or less of marijuana; prostitution and commercialized vice; or serious criminal activities if the alien has asserted immunity from prosecution).

There are some provisions of immigration law that allow certain applicants for AOS to adjust status even if they do not have lawful immigration status or failed to maintain lawful status. One category of such applicants includes those who filed a visa petition or labor certification prior to April 30, 2001. Another category includes victims of domestic violence inflicted by the spouse or a parent who is a United States citizen or lawful permanent resident.

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