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Adjustment of Status

Adjustment of status allows certain eligible immigrant relatives to apply for permanent residency within the United States without having to return to their home country.  In order to be eligible to adjust status, the immigrant relative must have been inspected and admitted into the United States and meet all other eligibility requirements.  Adjustment of status is in place of obtaining an immigrant visa through a U.S. consulate abroad (for more information see section on Consular Processing).

Who Is Eligible To Adjust their Status In the United States?

In order to be eligible to adjust status in the United States, you must either be an immediate relative of a United States citizen, or you must have a visa immediately available to you if you are a preference category relative (see discussion on Priority Dates and the Visa Bulletin for more information).  If you have a visa immediately available to you, then you are eligible to adjust your status within the United States if:

– You entered the United States lawfully, or

– You had a visa petition filed on your behalf prior to January 15, 1998 OR prior to April 30, 2001 AND you were  physically present in the U.S. on December 21, 2000 (Note: this may allow you to adjust status within the U.S. even if you entered unlawfully).

What Is the Application Process For Ajustment of Status?

Immediate relatives may file all necessary applications in one package called a “one-step.”  Preference category relatives must have a visa number immediately available to them to file the application for Adjustment of Status (Form I-48).  Upon submitting the application for permanent residence the individual is also eligible to obtain work authorization, and, in certain circumstances, permission to travel.  If the petitioning relative is a U.S. citizen, then the immigrant beneficiary will be forgiven for most “status-related” immigration violations, including unauthorized employement and visa overstay.  

As part of the application packet, the immigrant relative is required to submit an Affidavit of Support, in which the U.S. citizen signs a contract with USCIS stating that he or she will reimburse the government for any means tested federal public assistance the relative may use. To support this contract, the U.S. citizen or LPR must show that he or she makes at least 125% of the federal government’s poverty guidelines for the number of persons in the household.  If the petitioning relative does not earn enough to satisfy the requirement, it is possible to use a joint sponsor.

After the initial processing of the applications, USCIS may personally interview both parties regarding the bona fides of the relationship as well as to determine the intending immigrant’s eligibility for permanent residence.  At the time of your personal interview, spouses will need to show the USCIS substantial evidence that the marriage is a bona fide marriage.  

If I Have the Option of Adjusting Status or Consular Processing, Which Should I Choose?

For those present in the United States who have both alternatives available to them, adjustment of status is generally the preferred method because (1) it avoids the expense and inconvenience of travel back to the home country, (2) AOS applicants, including immediate family members, are entitled to employment authorization and sometimes permission to travel while the AOS application is pending, and (3) there are more options for reconsideration of an unfavorable decision by USCIS than by a consular post.

What If My Spouse and I Have Only Been Married A Short Time?

To account for the potential of sham marriages, a couple who has been married for less than two years at the time of filing will be considered for “conditional” permanent residency.  Conditional permanent residency provides the same benefits as regular permanent residency; however, the immigrant spouse must take additional steps at the end of a two year conditional period to maintain lawful permanent resident status.  Approximately three months before the two year period ends, the couple must jointly apply to USCIS to have the conditions removed. If USCIS believes that the marriage was genuine, and was not entered into for immigration purposes, the spouse will receive lawful permanent residence.  If the spouse fails to file the necessary paperwork, the conditional permanent resident status automatically terminates and the immigrant spouse is out of status, and may be deportable.  Note that there are certain exceptions to the requirement that the couple jointly file this petition to remove conditions.  Please contact Aretz & Heise Immigration to learn more about these exceptions.

Marriages, in particular, are put under the microscope by immigration authorities as well as our law office.  It is important to ask the hard questions regarding the marriage to identify any possible fraud.  Aretz & Heise Immigration thoroughly screens potential clients to determine whether a marriage is a valid marriage.  If you pass our test, you will likely get through the application process with immigration officials.

Contact Aretz & Heise Immigration today to schedule a consultation regarding your immigration case.

 

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