I CAME TO THE UNITED STATES ON A B-2 TOURIST VISA AND MARRIED MY US CITIZEN HUSBAND. CAN I FILE FOR ADJUSTMENT OF STATUS?
An adjustment of status (AOS) refers to the petition that an alien physically present in the United States submits to U.S. Citizenship and Immigration Services (USCIS) in order to change his or her status from nonimmigrant to immigrant, thereby becoming a lawful permanent resident.
Not all aliens are necessarily eligible to apply for an AOS, however. In this article, we explore the criteria that AOS applicants must satisfy in order to submit an I-485 petition to USCIS.
To establish basic eligibility for an AOS, an applicant must meet the requirements described below, which are enumerated in Section 245 of the Immigration and Nationality Act (INA).
Physical presence in the United States
If an alien does not reside in the United States, she cannot adjust her status. Her alternative route to a green card is to undergo immigrant visa processing at a U.S. consulate or embassy in her country of nationality or country of foreign residence. This process is referred to as consular processing.
Approved underlying immigrant petition
This criterion applies only to the beneficiaries of a family-based immigration petition (i.e. a Form I-130 petition), with one exception: An alien who is the immediate relative of a U.S. citizen is permitted to file an AOS concurrently with the petition filed by the U.S. citizen on the alien relative's behalf.
Who is considered to be an “Immediate Relative” of a US Citizen?
A spouse, parents or unmarried child under 21 of a US Citizen are considered to be “Immediate Relatives” These relatives do not have to wait for visa to become available nor do they need to wait for prior approval of an I-130
For employment-based immigrant petitions, an I-485 application can be concurrently filed with the underlying Form I-140 petition, provided that a visa number is available to the prospective beneficiary at the time of filing.
Visa number availability
As stipulated by statute, immigrant visas are subject to numerical quotas on a yearly basis. The consequence of a limited supply of visas and demand exceeding supply has been a backlog in visa number availability. Aliens can submit an AOS petition only when the cut-off dates published every month in the U.S. Department of State's (DOS) visa bulletin fall after their priority dates, or alternatively if their immigrant category is “current.”
Lawful admission to the United States
As noted above, an alien must physically reside in the U.S. in order to be eligible for an AOS. Prior to residing in the country, however, aliens must have been both inspected and lawfully admitted to the United States. The term “inspected” refers to an alien presenting himself to an immigration officer at a U.S. port of entry, while the term “lawfully admitted” refers to an immigration officer informing an inspected alien that she has been allowed to enter the country. In general, an alien's I-94 will indicate lawful admission to the U.S. Aliens who did not enter the United States lawfully generally cannot apply for an adjustment of status.
I ENTERED THE US UNLAWFULLY, BUT MY BROTHER FILED AN I-130 FOR ME IN FEBRUARY 2000, CAN I ADJUST STATUS IN THE US?
In certain circumstances Yes. We will need more information about your Immigration history, but those who entered the United States one time without status but for whom an application was filed with USCIS on or before April 30, 2000, may Adjust Status based on 245(i)
We will need to conduct an individual assessment of eligibility for you based on your own prior Immigration as well as Criminal history (if applicable) before we can state wether or not your case would be eligible for Adjustment of Status under the provisions of 245(i).
Not becoming a public charge
According to USCIS, a “public charge” is an individual who “is likely to become primarily dependent on the government for subsistence, as demonstrated by the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.” Section 214(a)(4) of the INA stipulates that an alien who is currently or is likely “at any time” to become a public charge is inadmissible. Aliens who wish to adjust their status must therefore establish that they have the financial means of support themselves, or alternatively that their sponsoring relatives in a family-based petition have said ability.
No change in circumstances
A change in circumstances with respect to an alien's underlying immigration petition—even circumstances outside the alien's control—can render said alien ineligible to file for an AOS. For your reference, we highlight hypothetical, though not uncommon, changes in circumstances below.
Family-based changes in circumstances:
- A U.S. citizen mother petitions for her unmarried 20-year-old son, an immediate relative not subject to visa quotas. However, before the AOS application is approved, the mother unfortunately dies. Her son thus no longer qualifies as an immediate relative of a U.S. citizen.
- An elderly legal permanent resident father petitions for his alien child, but before the adjustment is approved, the father dies. As in the case above with the U.S. citizen petitioner, the end result is the same: the child no longer qualifies for an AOS.
- A legal permanent resident father files an immigration petition for his 19-year-old alien daughter. After the visa petition is approved, but while the AOS application is still pending, the daughter gets married. Consequently, since she is no longer an unmarried child younger than 21 years old, the daughter no longer qualifies for adjustment.
Marriage-based changes in circumstances:
- A U.S. citizen wife petitions for her alien husband as an immediate relative. However, before the AOS application is approved, the two divorce. The adjustment will thereafter be denied, and the now ex-husband will not be able to apply for an AOS based on his former U.S. citizen wife.
- A U.S. citizen husband petitions for his alien wife as an immediate relative. However, before the adjustment is approved, they separate. The petition may ultimately be approved, but USCIS will scrutinize the couple's separation in order to ascertain whether or not the marriage is valid or merely a “sham” marriage.
- A U.S. citizen marries an alien. However, before he can file an immigration petition for his wife, he dies. The alien wife can actually still qualify as an immediate relative for adjustment of status if she and her deceased citizen husband had been married for at least two years and were not legally separated at the time of her husband's death. The alien wife will have to file an immediate relative visa petition within two years of her husband's date of death, and she must be unmarried at the time of filing.
Employment-based changes in circumstances:
- An outstanding researcher is the beneficiary of an approved immigration petition under the EB-1B category. Before her adjustment petition is approved, however, her employer withdraws the research position offer. As a result, USCIS will deny the researcher's AOS application; a job offer is required for an EB-1B.
- An alien is awarded a National Interest Waiver (NIW) and later applies for an adjustment of status. However, after her NIW petition was approved, the alien decided she no longer wanted to work in her previous capacity and thereafter started a new job in an unrelated field. As a result, USCIS is prone to deny her AOS application, on the grounds that she is no longer working in the capacity that merited an NIW for her in the first place.
- This is not so much a hypothetical as an important consideration: If an adjustment is based on an EB-1B (outstanding researcher) or any employment-based petition that requires an approved PERM labor certification, the alien beneficiary should work for the petitioning employer for 180 days after the I-485 has been filed. Otherwise, USCIS may deny the adjustment application.
It's important to note that aliens who meet all of the above criteria are not automatically eligible to adjust status. For various reasons, aliens may be statutorily barred from adjustment. Statutory bars to adjustment include:
- Unauthorized employment
- Unlawful status
- Failure to maintain status
Aliens who have engaged in unauthorized employment, or who were not in lawful status at the time they filed their AOS applications, or who have failed to continuously maintain their status for even a single day since their entry in the United States are barred from adjusting status.
As with many prohibitions, however, there are exceptions to the above. These include:
- Immediate relatives (i.e. spouses, parents, and unmarried children under 21 years of age) of U.S. citizens are still eligible to adjust their status.
- If a violation of status is a "technical violation" that occurred through no fault of an alien, said alien may still be able to adjust status. Examples of technical violations include:
- An individual or organization's failure to act on behalf of an alien where such inaction directly contributed to the violation of the alien's legal status.
- USCIS's failure to act in a timely manner on an application properly filed by the alien.
- The physical disability of an alien inhibited his timely request on legal status.
- Employment-based immigrants who have been out of status no more than 180 days in the U.S. remain eligible to adjust.
- The 245(i) exception is also available to qualifying aliens.
Other Special Circumstances
Aliens who are the beneficiaries of certain nonimmigrant visas must carefully consider their eligibility before adjusting status.
We highlight several eligibility-related circumstances below.
Exchange visitors with J visas
J-1 or J-2 status holders are subject to a two-year foreign residence requirement, stipulating that they return to their home country or foreign country of residence and remain there for at least two years upon completion of their J status. If a former J-1 or J-2 holder has not satisfied this requirement, or alternatively has not been granted a waiver of this requirement, then said alien will be barred from adjusting status.
Fiancé(e)s with K visas
Aliens admitted under the K-1 visa category for fiancé(e)s are eligible to petition for an AOS on a conditional basis, and only if the AOS stems from the K-1 holder's marriage to the sponsoring U.S. citizen within 90 days of entering the country. If the alien marries a U.S. citizen other than the one who filed the K-1 petition, then said alien will be barred from adjusting status.
Aliens in removal proceedings who marry a U.S. citizen or permanent resident
The default rule in these instances is that if the marriage was not entered into in good faith, then the alien is not eligible for an AOS. On the flip side, if the alien can demonstrate, with clear and convincing evidence, that the marriage was legitimate—and not for the mere purpose of obtaining permanent resident status and avoiding deportation—then the alien will be eligible to adjust status.
Aliens who entered under visa waiver programs
Aliens who, as tourists or business visitors, were admitted through the Visa Waiver Pilot Program under Section 217 of the INA or through the Guam and Northern Mariana Islands Visa Waiver Program under Section 212 of the INA are barred from adjusting status. Note, however, that this bar does not apply to persons admitted under these programs who are seeking adjustments as spouses, unmarried minor children, or parents of U.S. citizens. Additionally, the 245(i) exception is available to those who qualify.
Crewmembers with D visas
Foreign national crewmembers who were serving on a vessel or aircraft at the time of their arrival to the U.S. are barred from adjusting status. Again, however, the 245(i) exception is available to those who qualify.
Transits without a visa
Aliens in transit without a visa, traveling through the U.S. to another country, are barred from adjusting status. Once again, though, the 245(i) exception is available to those who qualify.
Adjustment of status is discretionary
Ultimately, adjusting status successfully hinges on the findings of the USCIS officer handling a given case. In other words, the decision rendered on an AOS petition is discretionary. Practically speaking, this means that even if an alien seems objectively eligible for adjustment and is not impeded by any of the statutory bars listed above, the end result could be that USCIS still denies her AOS application.
In our experience, adjustment of status tends to be granted when the alien applicant is statutorily eligible for AOS, in addition to presenting no “negative factors.” Understanding what we mean by “negative factors” is easiest by way of a comparison. Having close family relatives or immediate relatives in the U.S. may be a strong factor favoring adjustment. But a preconceived intent to remain in the U.S. at the time of entry as a nonimmigrant, even if said intent does not constitute fraud or willful misrepresentation, may be a sufficient negative factor in denying an adjustment of status application.
Our Firm is Here to Help
Given the often complicated process and the high stakes—a chance at permanent residency in the United States—involved, it's imperative that aliens seeking adjustment consult with an experienced Immigration Attorney.
We recommend all clients start with a one hour consultation with our attorneys so we can take time to understand your Immigration history and can provide you with the guidance and information you need in order to proceed with maximum chance of successfully acquiring status as a Lawful Permanent Resident.