To use AOS you must be eligible for a green card in one of the following categories:
- Family: You can qualify for a family-based green card as the spouse, child, parent, or another close relative of a U.S. citizen or green card holder.
- Employment: You can qualify for an employment-based green card through sponsorship by your employer, or based on your own accomplishments and abilities.
- Other: You can qualify for a green card on humanitarian grounds, through the diversity lottery, or for other reasons.
Learn more about the different types of green cards.
More specifically, adjustment of status is the immigration process for the following marriage visa types:
- IR6/CR6 spouse and accompanying IR7/CR7 child when the sponsor is a U.S. citizen
- F2A category (F26 spouse; F27 child) when the sponsor is a legal permanent resident (aka green card holder)
- CF1 spouse; CF2 child when the sponsor is a U.S. citizen and the foreign spouse is adjusting status from a K fiancé visa
To use AOS, you must have used a valid visa or the Visa Waiver Program for your most recent entry to the United States. Most applicants must be in lawful status when they first apply for Adjustment of Status, even if their visa later expires before the process is complete.
One exception is if you are applying for Adjustment of Status through marriage to a U.S. citizen. In these cases, you can use AOS even if you overstayed on a visa, as long as you originally entered the United States with a valid visa or visa waiver.
Before you can apply for AOS, you must make sure a green card is available for you. This is automatically the case if you are applying as the spouse or immediate relative of a U.S. citizen. If you’re applying as a more distant relative (called “family preference”), or if your sponsor is a green card holder, you could face a long wait. You can check your priority date to see when you might be able to apply.
If you’re applying for a green card through employment or other grounds, you could also face a wait before a green card becomes available. Check the latest Visa Bulletin for more information on what kind of timeline you can expect.
Understanding the 90-day rule
If you’re eligible for a green card and in lawful status, you’ll still need to be careful not to trigger the 90-day rule. This is a guideline that U.S. Citizenship and Immigration Services (USCIS) uses to determine whether AOS applicants misrepresented their intentions when they first arrived in the United States.
Many temporary visas, such as the F-1 or B2 and B1 visas, can’t be used if you plan to immigrate permanently. By contrast, other temporary visas such as H-1B or L-1 allow “dual intent,” and can be used even if you plan to move permanently to the United States.
If you’re on a visa that doesn’t allow dual intent, you could run into trouble when you apply for AOS, since it shows that you intend to immigrate permanently. The U.S. government could reject your application or revoke your current visa if they decide you secretly planned to immigrate when you first entered the United States.
To make that determination, the USCIS official handling your case will apply the 90-day rule, a guideline that allows officers to infer that you misrepresented your intentions if you adjust your status within 90 days of arriving in the United States.
It’s possible to convince the USCIS officer that you genuinely didn’t intend to immigrate when you first arrived, but you’ll have to offer evidence and will face an uphill struggle.
Even after 90 days, USCIS officers can use their own judgment to determine that you misrepresented your intentions. Still, you’re much less likely to have problems if you wait until more than 90 days have passed before filing an AOS application.