In plain language, the phrases ‘change of status’ and ‘adjustment of status’ may sound like they are describing the same process. However, in immigration law there is a fundamental difference between these two procedures.
Change of Status
When you come to the U.S. on non-immigrant visa and you later want to change your non-immigrant category while staying in the United States, you can submit an application to the U.S. Citizenship & Immigration Services (USCIS) to change your status. For example, if you originally came to the U.S. on B-2 tourist visa, but then you got accepted to a U.S. University and you want to start your studies without leaving the U.S., you would need to change your status from B-2 status to F-1, student status.
You are eligible to change your status if you have been lawfully admitted to the U.S. with a non-immigrant visa, your non-immigrant status remains valid, and you did not violate conditions of your status. You cannot change your status if you, for example, overstayed your prior non-immigrant visa. There are also certain categories of nonimmigrant visas that do not permit you to change status, such as C, D and K visas. People who enter on ESTA are also not permitted to change status.
If you want to change your status, you will have to file Form I-539, Application to Extend/Change Nonimmigrant Status and submit the filing fee, which is currently $370. It usually takes several months for USCIS to issue a decision on a Change of Status application. Until you receive the approval from USCIS, you cannot change your activity in the United States. Thus, if you came as a tourist and applied for a change of status to F-1, student status, you cannot start attending school until the change of status is approved, even if you have been accepted and the classes have started.
If your school starts soon and your change of status application looks like it will not be approved in time, you may want to depart the U.S. and apply for the F-1 visa through the U.S. Consulate abroad. Applying at a U.S. Consulate usually takes significantly less time than applying through USCIS for a change of status. In such case, you complete a DS-160 application, pay the visa application fee, schedule an interview at the U.S. Consulate and attend an interview at the Consulate.
Adjustment of status
If you are currently in the U.S. on a non-immigrant visa and you want to apply for a green card while staying in the United States, you can go through a process called adjustment of status. As a first step, you will have to fit into one of the categories under which a person can apply for a green card (such as green card through family or green card through employment).
Let’s illustrate the adjustment of status process through the following example: You came to the United States on F-1 visa (a non-immigrant visa) and while you were in the U.S. on the F-1 visa you got married to a U.S. citizen. In such case you became an immediate relative of a U.S. citizen. Your spouse can thereafter file Form I-130 and you can file form I-485, Application to Adjust Status. You will also be permitted to file for work and travel authorization when you file to adjust status. During this procedure, you must be physically present in the United States and if you leave the U.S. before you have been granted travel authorization, you will be considered to abandon your adjustment of status application.
After you file your adjustment of status application, you will be required to go to your biometrics appointment and undergo an interview with USCIS Officer (depending on the basis for your green card). If USCIS approves your I-485 petition, you will receive an approval notice, your status in the United States will be adjusted to that of legal permanent resident and you will receive your Green card.
To find out more about the new rules or other investor visas, contact Scott Legal, P.C.
Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at firstname.lastname@example.org.
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