What Are the Bars to Adjustment of Status?

Adjusting status is the process for an individual physically present in the United States to apply for lawful permanent resident status, commonly known as getting a Green Card, without having to return to their home country. This process, governed by Section 245 of the Immigration and Nationality Act (INA), allows eligible individuals to complete their immigration journey from within the U.S.

The ability to adjust status is not universal, as the law establishes specific disqualifying factors known as “bars.” The existence of these bars means that simply being in the U.S. and having a basis to immigrate, such as a family relationship or a job offer, is not always sufficient to secure a Green Card through this domestic procedure.

Entry and Status Related Bars

A primary set of obstacles to adjusting status relates to how an individual entered the United States and whether they have maintained a lawful presence. One of the most significant bars is an entry without inspection (EWI). This occurs when a person enters the U.S. without being admitted or paroled by an immigration officer. An EWI acts as a disqualification for most individuals because the law requires an applicant to have been lawfully admitted or paroled.

Another common obstacle is the failure to continuously maintain a lawful status since entering the United States. This can happen by overstaying a visa, where a person remains in the U.S. beyond the date on their I-94 record, or by violating the conditions of their stay. For instance, an F-1 student who stops attending classes violates their status.

Engaging in unauthorized employment is a distinct but related bar to adjustment of status under INA 245(c). This restriction prevents individuals who have worked in the U.S. without explicit permission from U.S. Citizenship and Immigration Services (USCIS) from adjusting their status. The consequences of these violations often result in the denial of the Form I-485, Application to Register Permanent Residence or Adjust Status.

Specific Visa Category Bars

Certain nonimmigrant visa categories are prohibited by law from adjusting to permanent resident status. One of the most well-known prohibitions applies to alien crewmen who enter with a C-1/D visa. These visas are issued to individuals working on sea vessels or international airlines, and they are explicitly barred from adjusting their status.

Individuals admitted under the Transit Without Visa (TWOV) program are also barred from adjusting their status. This now-suspended program allowed certain foreign nationals to transit through the U.S. to another country without a visa.

J-1 Exchange Visitors are often subject to a two-year foreign residency requirement under INA 212. This rule applies if their program was funded by their home government or the U.S. government, or if their field of specialized knowledge is on their home country’s “Skills List.” Individuals subject to this requirement must return to their country of last residence for two years before they can adjust status.

K-1 Fiancé(e) visa holders face a unique limitation. They are barred from adjusting status on any basis other than through the marriage to the U.S. citizen who filed the I-129F petition on their behalf. If the marriage does not occur within 90 days of entry, the K-1 holder generally cannot adjust status through another petitioner.

Inadmissibility Grounds as Bars

Even if an applicant is not subject to other bars, they must still demonstrate they are “admissible” to the United States. The Immigration and Nationality Act lists numerous grounds of inadmissibility, any of which can act as a bar to adjusting status.

Criminal Grounds

An applicant may be barred for convictions of certain offenses, including crimes involving moral turpitude (CIMTs). Other criminal bars include:

• Violations of any law relating to a controlled substance
• Multiple criminal convictions with aggregate sentences of five years or more
• Engagement in serious criminal activities like prostitution or human trafficking

Fraud or Willful Misrepresentation

This bar applies if an individual has, at any time, lied on a visa application, to an immigration officer, or on any official immigration form to gain an immigration benefit. For example, falsely claiming to be a U.S. citizen or providing fake documents would render an individual inadmissible. This bar is permanent unless a specific waiver is granted.

Public Charge

Under the rule that became effective in December 2022, an applicant is considered likely to become a public charge if they are likely to become primarily dependent on the government for subsistence. This determination is based on a “totality of the circumstances” test, which assesses factors such as age, health, family status, assets, resources, financial status, education, and skills.

Health-Related Grounds

This category includes having a communicable disease of public health significance, such as tuberculosis, or failing to provide documentation of required vaccinations. An individual may also be found inadmissible for a physical or mental disorder with associated harmful behavior that may pose a threat to the property, safety, or welfare of the applicant or others.

Overcoming Bars to Adjustment

While the bars to adjustment of status are significant, Congress has created specific exceptions and remedies that allow certain individuals to overcome them.

A major exception benefits the “immediate relatives” of U.S. citizens, which includes their spouses, unmarried children under 21, and parents (if the citizen is over 21). If an immediate relative entered the U.S. legally after being inspected and admitted or paroled, they are generally forgiven for overstaying their visa and for engaging in unauthorized employment. However, this exception does not forgive an entry without inspection (EWI).

Another powerful tool is Section 245(i), a grandfathering provision that allows certain individuals who would otherwise be barred to adjust their status. To be eligible, the individual must be the beneficiary of an immigrant petition or labor certification that was filed on or before April 30, 2001. If the petition was filed between January 15, 1998, and April 30, 2001, the applicant must also prove they were physically present in the U.S. on December 21, 2000. Eligible applicants can overcome major bars, including EWI and unauthorized employment, by paying a $1,000 penalty fee.

For those blocked by grounds of inadmissibility, a waiver may be an option. The most common waiver is filed on Form I-601, Application for Waiver of Grounds of Inadmissibility. For many grounds, such as certain crimes or fraud, the applicant must prove that denying their admission would result in “extreme hardship” to a qualifying U.S. citizen or lawful permanent resident spouse or parent. Proving extreme hardship is a high standard, requiring evidence that the hardship is greater than the normal difficulties associated with family separation.