Who Can't Adjust Status: The Bars and a Key Exception
Getting a green card from inside the United States — through "adjustment of status" — is often the smoothest path. But not everyone is eligible for it, even when they qualify for an immigrant visa in the abstract. The law contains specific bars to adjustment, and they catch many people by surprise. Just as importantly, the law contains a powerful exception that saves many others. Understanding both is essential for anyone considering this path. This guide explains, in plain English.
This is general information, not legal advice. The rules below come directly from 8 U.S.C. § 1255(c) — the section of the Immigration and Nationality Act (INA § 245(c)) that sets out who cannot adjust status — as published in the U.S. Code by the Office of the Law Revision Counsel. Whether any of it applies to a specific case is a legal judgment that depends on the facts.
What adjustment of status is (briefly)
Adjustment of status is the process by which an eligible person already in the United States becomes a lawful permanent resident without leaving the country to process a visa abroad. It is generally the preferred path when available — but availability is exactly the question the bars address.
The bars to adjustment
Under § 1255(c), adjustment of status is not available to certain people, including:
- an alien crewman;
- a person who, before filing for adjustment, continued in or accepted unauthorized employment;
- a person who is in unlawful immigration status on the date they file; and
- others the statute specifies (such as those admitted in transit without a visa).
Read that again, because it surprises many people: working without authorization, or being out of status when you file, can bar adjustment — even if you otherwise qualify for a green card. Many people do not realize that a period of unauthorized work or a lapse in status can close the door to adjusting from within the United States.
The crucial exception: immediate relatives
Here is the exception that changes everything for many families. The bars in § 1255(c) generally do not apply to an "immediate relative." As defined elsewhere in the law, immediate relatives are the spouse, unmarried minor children, and parents of a U.S. citizen.
This means that an immediate relative of a U.S. citizen can often adjust status despite having worked without authorization or fallen out of status — problems that would bar most other applicants. The statute also carves out certain special immigrants. The immediate-relative exception is one of the most important features of adjustment law, and it is why the relationship behind a case matters so much.
Why the difference between paths matters
The bars help explain a recurring theme in immigration law: who is petitioning for whom can determine not just whether someone qualifies, but how they can get their green card. An immediate relative of a U.S. citizen has flexibility that others do not — including the ability to adjust despite issues that would otherwise be disqualifying. Someone who is not an immediate relative, and who has an unauthorized-work or status problem, may find that adjustment is barred and that a different (and riskier) path is required.
Why this analysis should come first
Because the bars can quietly prevent adjustment, and because the immediate-relative exception can quietly save it, whether a person can adjust status is a threshold question that should be analyzed early. A person who assumes they can adjust — but is actually barred — could file and be denied; a person who assumes they are barred — but actually qualifies for the exception — might miss an opportunity. Getting this right at the start shapes the entire strategy.
Why careful eligibility review pays off
Adjustment of status is favorable, but only for those who are actually eligible for it. Confirming whether a bar applies, and whether the immediate-relative or another exception saves the case, is the foundation of a sound plan. This is especially important for anyone with a history of unauthorized work or a period out of status.
Talk to a lawyer about your path to a green card
If you are considering a green card through adjustment of status and have any history of unauthorized work or a lapse in status, whether you can adjust — or qualify for an exception — depends on your specific facts. Carlos Maury Law is a national firm of former U.S. Immigration Judges. To talk about your situation, call (213) 769-0050. We speak Spanish.
Frequently Asked Questions
Who cannot adjust status to get a green card?
Under 8 U.S.C. § 1255(c), the bars include alien crewmen, people who continued in or accepted unauthorized employment before filing, and people in unlawful immigration status on the date of filing, among others. These bars can prevent adjustment even for someone who otherwise qualifies for a green card.
Can I adjust status if I worked without authorization?
It depends. For most applicants, unauthorized employment before filing is a bar under 8 U.S.C. § 1255(c). But immediate relatives of U.S. citizens are generally exempt from this bar, so an immediate relative may be able to adjust despite unauthorized work.
Who is an "immediate relative" for this exception?
Immediate relatives are the spouse, unmarried minor children, and parents of a U.S. citizen. Because the § 1255(c) bars generally do not apply to immediate relatives, this category has important flexibility to adjust status that other applicants may lack.
What if I'm not an immediate relative and a bar applies?
If a bar applies and no exception saves the case, adjustment from within the United States may not be available, and a different path — such as consular processing abroad — may be required. That path can carry its own risks, so the situation should be reviewed carefully before acting.
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This article is general information only and is not legal advice. Reading it does not create an attorney–client relationship. Immigration law is complex and fact-specific; consult a qualified immigration attorney about your situation. Prior results do not guarantee a similar outcome. Attorney advertising.