Marriage Based Adjustment of Status
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 bona fide. These findings result in delays of potentially more than one year or a denial.
The U.S. citizen files an I130 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. For instance in San Francisco interviews take approximately 7-12 months before an interview is scheduled.
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.
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