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COMMON IMMIGRATION TERMS EXPLAINED
Click on the immigration terms below for a general explanation:
Adjustment of Status (AOS): This is an application by someone who is in the US to “adjust status” usually from a non-immigrant or temporary visa status to permanent resident status. It is filed on form I-485 with the USCIS.
- Not everyone is eligible to adjust status in the US.
- Generally, there must be an approved immigrant visa petition or a concurrently filed immigrant visa petition which provides immediate visa availability in an immigration category for which the applicant qualifies.
- Generally, one must be in legal status in the US in order to file for adjustment of status. There are a few exceptions to this rule, including:
- immigrants in the Immediate Relative visa category who can show that they entered the US legally at the time they last arrived;
- people obtaining employment based immigration who have been out of status for a lifetime total period of less than 180 days; and
- people who are eligible to file for adjustment of status under Section 245(i) of the Immigration & Nationality Act.
- The adjustment of status laws are complex. Filing for adjustment of status when the applicant does not qualify or is inadmissible to the US can result in the government beginning a removal or deportation hearing. Caution is strongly advised.
Change of Status (COS): This is an application filed with the USCIS by someone who is in the US to “change status” from one non-immigrant visa status to another non-immigrant visa status. Generally, one must be in legal status in the US in order to be eligible to change status in the US. If someone is out of legal status in the US because they stayed past their authorized time or have somehow violated the terms of their status, then they are not generally eligible for a change of status in the US. There are some exceptions to this rule, but very few.
Extension of Status (EOS): This is an application filed with the USCIS by someone who is in the US to extend an existing non-immigrant visa status. Generally, one must be in legal status in the US in order to be eligible to extend status in the US. If someone is out of legal status in the US because they stayed past their authorized time or have somehow violated the terms of their status, then they are not generally eligible to extend their status in the US.
Out of Status: Generally, someone who is not in proper legal immigration status in the US is considered to be “out of status.” Determining whether someone is “in legal status” or is “out of status” can be complex and is not always clear. Moreover, someone can be considered to be out of status for one purpose, but not out of status for another purpose. For most immigration purposes, someone will be considered to be out of status if they have: entered the US without being legally inspected and admitted or paroled; remained in the US beyond their authorized time; or otherwise violated the terms of their authorized stay.
Reinstatement: This is an application by an F-1 foreign student who fell out of legal status because he or she was unable to continue attending school on a full time basis as required. Generally, in order to be “reinstated” to F-1 status, an application must be filed with the USCIS explaining why it was not the student’s fault that he or she fell out of status. Applications which are filed after a student misses more than one semester of school are much less likely to be approved. These applications can be quite difficult to get approved.
USCIS: United States Citizenship & Immigration Services. This is the government agency which is a part of the Department of Homeland Security and which has primary responsibility for providing immigration related services in the US. It is one of the agencies which took over the functions of the now defunct INS or Immigration & Naturalization Service, which had been a part of the US Department of Justice.
USICE: United States Immigration & Customs Enforcement. This is the government agency which is a part of the Department of Homeland Security and which has primary responsibility for enforcing immigration laws in the US. It is one of the agencies which took over the functions of the now defunct INS or Immigration & Naturalization Service, which had been a part of the US Department of Justice.
245(i) Out of Status Adjustment Law: This section of law permits certain eligible persons who are not in legal status in the US, but who are otherwise qualified for adjustment of status, to apply for adjustment of status in the US instead of returning home to apply for an immigrant visa at an American embassy or consulate. Generally, in order to be eligible, one must:
- Have had an application for alien employment certification or a family based I-130 visa petition filed on their behalf on or before April 30, 2001;
- Have been physically present in the the US on December 21, 2000 if the application for alien employment certification or I-130 visa petition was filed after January 14, 1998;
- Pay an additional $1,000.00 penalty filing fee in addition to the normal adjustment of status filing fee if 17 years of age or older when filing the application
This section of law is extremely important for those who qualify because it can enable them to obtain permanent residence without departing the US, thereby avoiding the three and ten year inadmissibility penalties found is section 212(a)(9)(B) of the immigration law.
212(a)(9)(b) Out of Status Penalty Law: This section of law provides generally that persons who have been “out of status” in the US for 180 days or more and who then depart the US are inadmissible to the US until they have remained outside the US for at least three years. Generally, persons who have been “out of status” in the US for one year or more and who then depart the US are inadmissible to the US until they have remained outside the US for at least ten years.
- No period of “out of status” time spent in the US while under the age of 17 or prior to April 1, 1997 is counted when calculating “out of status” time for purposes of this provision of the law.
- For purposes of this provision of the law only, a person who has violated the terms of their status, but who has not remained in the US past their fixed status expiration date as shown on their papers will not be considered to be “out of status” unless and until a government agency has officially informed them that they are “out of status.” In other word, it is possible for to be “out of status” for purposes of filing an extension or change of status in the US, but not be “out of status” for purposes of this penalty provision of the law.
- “Out of status” time spent in the US accumulates over the lifetime of the individual. It is not erased simply because a person departs the US prior to accumulating 180 days total.
- Someone who has a US citizen or permanent resident spouse or parent may be able to get a waiver of this penalty, but only if they can show that their US citizen or perament resident spouse or parent would be caused “extreme hardship” if the waiver was not granted. It is very difficult to get a waiver. Most waiver requests are denied.
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