Not everyone is eligible for adjustment of status. Some people must go through consular processing. To be eligible for adjustment of status you must pass a test, so to speak. Here we’ll look at this test.
To Be Eligible for Adjustment of Status, You Must Show …
To be eligible for adjustment of status, a foreign national must be eligible to receive an immigrant visa and be admissible to the United States for permanent residence, and an immigrant visa must be immediately available to the foreign national when she files the application to adjust status.
Regarding the requirement that the foreign national be eligible to receive an immigrant visa, a foreign national seeking to adjust status to that of an EB-2 (employment-based second preference category) immigrant must obtain a valid labor certification–typically.
Prior USCIS approval of the employment-based immigrant petition is not required. However, the petitioner must file the employment-based immigrant petition before or together with the application to adjust status.
A foreign national who seeks adjustment of status under an employment-based immigrant petition not maintaining a lawful nonimmigrant status is generally ineligible to apply for adjustment of status.
Accordingly, any foreign national–including the spouse or the minor children of the main applicant for adjustment of status–who, at the time of application for adjustment of status, is likely to become a “public charge” is inadmissible. Each foreign national who seeks adjustment of status based on being a relative of a foreign national with an approved employment-based immigrant petition must provide evidence that they will not be a public charge.
Likewise, any foreign national who seeks adjustment of status under an employment-based preference petition filed by an entity that the foreign national has a significant ownership interest in must provide evidence that they will not be a public charge.