The INS has issued a memo confirming the practice of transferring adjustment of status eligibility from one immigrant visa petition category to another.
In May, the INS issued a memorandum confirming the practice of transferring adjustment of status eligibility from one immigrant visa petition category to another, while the same adjustment of status application is pending. The procedure has become particularly valuable in recent years, as adjustment of status or “green card” processing takes nearly three years in many INS offices. During that time, individual applicants’ circumstances change, requiring new petitions in order to adjust. The INS memorandum recognizes that requiring these people to begin anew upon a change of petitions would punish applicant’s unfairly for INS’ delays.
Adjustment of Status is perhaps the single most sought after immigration benefit available. Since adjustment applicants can acquire lawful permanent resident status without leaving the United States, the employment and family relationships on which such applications are based may be preserved during the pendency of the application. Beginning with the introduction of INA 245(i) in 1994, which allowed thousands of otherwise ineligible adjustment of status applicants to adjust upon the payment of a fine, the backlogs at INS offices have grown from a mere three months to three years.
Basic eligibility for adjustment of status is predicated on the approval of an immigrant visa petition. The most common visa petitions are Petitions for Alien Relatives (“I-130”) and Petitions for Immigrant Workers (“I-140”). When visas become available for any particular petition according to the quota system, an I-485 adjustment of status application may be filed. Work permits are available after several weeks, but potentially years will elapse before an interview is scheduled at which the application may actually be granted.
During this waiting period, situation may change drastically. Offers of better employment are made. Marriages break down and people pass away. The fundamental relationships on which visa petitions are based change, and in many cases new relationships are established.
The transfer procedure allows for applicants in these situations to complete the adjustment of status process by simply using the new petition in place of the old. The INS endorses this procedure, because it does not unfairly benefit any applicant who has waited his turn over other applicants. The policy acknowledges the frequency with which individuals may change employment and the frailties of family relationships. Adjustment applicants considering voluntary change should not feel compelled to remain in uncomfortable situations. Similarly, those whose situations have changed involuntarily should recognize and pursue other options.