How and When to Apply for Adjustment of Status with Family-Based Petitions

One of the benefits of being a United States Citizen is that you can petition for certain relatives to come and join you in the United States as legal permanent residents. A citizen is able to petition his/her sister, brother, mother, father, spouse and children. However, a legal permanent resident may only file petitions for a spouse or his/her own children.

When a petition for a family member has been filed, it is given a priority date by the Immigration and Naturalization Service (INS). The priority date is very important because it determines when the relative will be eligible to file an application for Adjustment of Status.

“Adjustment of Status” is the term used by the INS to describe the process by which an immigrant gets a resident alien card, or a green card. Despite certain representations that you might have read recently, there is no such thing as a “highest” green card. All green cards are the same. Celebrities receive the exact same card as you would. Possessing a green card just means that you have legal permanent resident status in the United States of America.

In order to get a green card, everybody must go through the same process. This difference is in the amount of time necessary before a visa is available for your particular preference category. Preference categories are determined by examining the relationship between the Petitioner and the Beneficiary, the immigration status of the Petitioner and sometimes the age and marital status of the Beneficiary.

It takes longer for petitions of naturalized citizens from certain countries to petition his/her son or daughter who is over 21 years old than for legal permanent residents from certain countries to petition his/her sons or daughters over 21. For many immigrants, very few priority dates are “current.” A priority date is current when the U.S. State Department determines that the visas are available for applications filed on that particular priority date. Most petitions will require several years until the Beneficiary is eligible to apply for an Adjustment of Status. The only family-based petition where visas are immediately available is for immediate relatives of a United States citizen. “Immediate relatives” are spouses, children under 21 and parents. For any other type of Beneficiary, it is very important to get a petition for an alien relative filed as soon as possible to establish the priority date for the Beneficiary.

Generally, each month, the priority dates will each move forward. In September and October of each year, the priority date for unmarried sons and daughters over 21 years old of a legal permanent resident will regress, or fall back, about 5 months. This means that many people who were eligible to file for Adjustment of Status in August may not be eligible in September or October. Although this may appear surprising to you, please do not be alarmed. In my 16 years of experience, I have seen priority dates regress many times. Generally, the date will be back to its pre-regression date within a few months.

Immigration law can be a confusing and an intimidating maze of rules, regulations and statutes. By placing your particular matter into the hands of an attorney with skill, knowledge and 16 years of immigration experience, you can insure that your case will be handled with dignity and professionalism.