B
O
C
Adjustment of status is the process by which a nonimmigrant,
while residing in the United States, may apply for lawful
permanent residence (green card) based on a family based
immigrant visa petition (I130) or employment based immigrant
visa petition (I140).
A U.S. citizen may petition for his or her spouse to obtain
permanent residence if the spouse is residing in the U.S., has
proof of lawful entry (generally in the form of a Form I94 issued
upon entry). The spouse must be admissible to the United States
and not deportable.
Alternatively, if the spouse of a U.S. citizen is residing abroad,
the U.S. citizen may file an I130, and the spouse may apply for an
immigrant visa upon the approval of the I130.
If the spouse is granted an immigrant visa, he or she will enter
the U.S. as a lawful permanent resident.
Because of the delays in the processing of the I130 petition, the
U.S. citizen may apply for a K3 visa, which will allow the spouse to
enter the U.S. while the I130 is pending. After the spouse enters
the U.S., he or she may then apply for an adjustment of status.
The adjustment of status process is also the final step for
fiancées of U.S. citizens.
When fiancées enter the U.S. with a K1 visa, they must marry
within 90 days. After the marriage, they must apply for an
adjustment of status.
In situations where a U.S. citizen wishes to marry or has married
an individual who has entered the U.S. with a visitor’s visa, the
couple must be aware of a concept in immigration law regarding
nonimmigrant intent.
Those who enter as a visitor are understood to hold the intent to
return to their home country before the designated period of stay
expires.
If a visitor takes steps to become a lawful permanent resident,
the U.S. Citizenship and Immigration Services (USCIS) may
perceive that to be contrary to the intent represented, and may
determine that the visitor has violated the terms or his or her
stay, and may find that the visitor committed misrepresentation,
which is a serious violation of immigration law.
Generally, the USCIS will scrutinize the marriage to ensure that it
is bona fide and not entered into solely for the purpose of
gaining immigration benefits.
Furthermore, applications that are completed without meeting
regulatory requirements, or do not have the appropriate
supporting documentation could be rejected for filing. The
burden of proof is on the applicants to establish eligibility for
permanent residence.
At the interview the officer may also make a determination that
the application is deficient or the applicant did not meet the
burden of proof to demonstrate that the marriage is bonafide.
These findings result in delays of potentially more than one year
or a denial.
APPLICATION PROCEDURE
The U.S. citizen files an I-130 immediate relative petition with the
local service center. The spouse files the adjustment of status
application simultaneously with the immediate relative petition
and many other forms.
Additionally, the application must be submitted with supporting
documentation. With the adjustment of status application, the
spouse may also apply for employment authorization and
permission to travel while the adjustment of status is pending.
All applicants should note that if they travel without the proper
authorization, their adjustment of status application will be
considered abandoned. Subsequent to filing the application, the
applicant will receive a fingerprinting notice to have his or her
fingerprints taken for an FBI background check.
Depending on the local service center, interviews are scheduled
within 120 to 700 days of filing.
At the interview the USCIS officer will make a determination of
whether or not the marriage is bona fide by evaluating the
applicant’s answers to the officer’s questions and evaluating the
applicant’s evidence.
The officer will also evaluate other issues involving the applicant’
s admissibility under immigration law (such as whether the
applicant meets the affidavit of support requirements or properly
entered the United States).
CONDITIONAL PERMANENT RESIDENCY
If the marriage is less than two years old at the time the spouse is
granted permanent residence, he or she will be granted
“Conditional Permanent Residence,” meaning that permanent
residence is granted for two years.
Prior to the end of the two years (within 90 days of the expiration
of conditional residence), the spouse must submit an application
to USCIS to remove conditional status.
The applicant and the U.S. citizen must jointly file a petition to
remove conditional residence. If applicant is divorced at the time
of filing, applicant may submit a waiver application to USCIS for
removal of the conditional status.
The USCIS may call in applicant for a second interview to verify
that the marriage was bona fide at the time it was contracted.
Removing conditional status is an extremely important step,
because if a spouse fails to submit this application, his or her
permanent residence is automatically terminated, and will be
removable from the U.S.
while residing in the United States, may apply for lawful
permanent residence (green card) based on a family based
immigrant visa petition (I130) or employment based immigrant
visa petition (I140).
A U.S. citizen may petition for his or her spouse to obtain
permanent residence if the spouse is residing in the U.S., has
proof of lawful entry (generally in the form of a Form I94 issued
upon entry). The spouse must be admissible to the United States
and not deportable.
Alternatively, if the spouse of a U.S. citizen is residing abroad,
the U.S. citizen may file an I130, and the spouse may apply for an
immigrant visa upon the approval of the I130.
If the spouse is granted an immigrant visa, he or she will enter
the U.S. as a lawful permanent resident.
Because of the delays in the processing of the I130 petition, the
U.S. citizen may apply for a K3 visa, which will allow the spouse to
enter the U.S. while the I130 is pending. After the spouse enters
the U.S., he or she may then apply for an adjustment of status.
The adjustment of status process is also the final step for
fiancées of U.S. citizens.
When fiancées enter the U.S. with a K1 visa, they must marry
within 90 days. After the marriage, they must apply for an
adjustment of status.
In situations where a U.S. citizen wishes to marry or has married
an individual who has entered the U.S. with a visitor’s visa, the
couple must be aware of a concept in immigration law regarding
nonimmigrant intent.
Those who enter as a visitor are understood to hold the intent to
return to their home country before the designated period of stay
expires.
If a visitor takes steps to become a lawful permanent resident,
the U.S. Citizenship and Immigration Services (USCIS) may
perceive that to be contrary to the intent represented, and may
determine that the visitor has violated the terms or his or her
stay, and may find that the visitor committed misrepresentation,
which is a serious violation of immigration law.
Generally, the USCIS will scrutinize the marriage to ensure that it
is bona fide and not entered into solely for the purpose of
gaining immigration benefits.
Furthermore, applications that are completed without meeting
regulatory requirements, or do not have the appropriate
supporting documentation could be rejected for filing. The
burden of proof is on the applicants to establish eligibility for
permanent residence.
At the interview the officer may also make a determination that
the application is deficient or the applicant did not meet the
burden of proof to demonstrate that the marriage is bonafide.
These findings result in delays of potentially more than one year
or a denial.
APPLICATION PROCEDURE
The U.S. citizen files an I-130 immediate relative petition with the
local service center. The spouse files the adjustment of status
application simultaneously with the immediate relative petition
and many other forms.
Additionally, the application must be submitted with supporting
documentation. With the adjustment of status application, the
spouse may also apply for employment authorization and
permission to travel while the adjustment of status is pending.
All applicants should note that if they travel without the proper
authorization, their adjustment of status application will be
considered abandoned. Subsequent to filing the application, the
applicant will receive a fingerprinting notice to have his or her
fingerprints taken for an FBI background check.
Depending on the local service center, interviews are scheduled
within 120 to 700 days of filing.
At the interview the USCIS officer will make a determination of
whether or not the marriage is bona fide by evaluating the
applicant’s answers to the officer’s questions and evaluating the
applicant’s evidence.
The officer will also evaluate other issues involving the applicant’
s admissibility under immigration law (such as whether the
applicant meets the affidavit of support requirements or properly
entered the United States).
CONDITIONAL PERMANENT RESIDENCY
If the marriage is less than two years old at the time the spouse is
granted permanent residence, he or she will be granted
“Conditional Permanent Residence,” meaning that permanent
residence is granted for two years.
Prior to the end of the two years (within 90 days of the expiration
of conditional residence), the spouse must submit an application
to USCIS to remove conditional status.
The applicant and the U.S. citizen must jointly file a petition to
remove conditional residence. If applicant is divorced at the time
of filing, applicant may submit a waiver application to USCIS for
removal of the conditional status.
The USCIS may call in applicant for a second interview to verify
that the marriage was bona fide at the time it was contracted.
Removing conditional status is an extremely important step,
because if a spouse fails to submit this application, his or her
permanent residence is automatically terminated, and will be
removable from the U.S.
BOGLE
OKOYE
CHANG
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BOGLE & CHANG, LLC
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Marriage Green Cards - Adjustment of Status
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