Do you qualify for an family based Adjustment of Status?

So you are in the United States and you’re wondering if you can simply adjust your status to permanent resident. To adjust status, you or your relative must meet certain criteria.

Requirements

  • Have a U.S. citizen or permanent resident family member that has sponsored the relative applicant.

  • There must be an approved visa petition (Form I-130)  on file, with a current priority date. At times, this requires the relative applicant to wait for a visa to become available. This usually takes years. There is an exception for an “immediate relative” of a U.S. citizen where the visa petition (Form I-130) can be filed at the same time as the adjustment of status application because upon approval of the I-130, a visa becomes available immediately. If the relative applicant entered the U.S. on a K fiance visa, then the relative applicant must first marry the U.S. citizen fiance before filing for an adjustment of status.

  • Must be physically present in the United States and have legal status.

  • Must not be a foreign crew member or must not have entered the U.S. without permission or inspection. There is a limited exception. The Attorney can determine whether the exception applies.

  • Must have current status in the U.S. (for example, no overstay of visa). However, there is one exception to this rule. The immediate relative (children, spouse, or parents) of U.S. citizens may adjust their status if their visa expired and they meet the other requirements.

What to Expect During the Green Card Processing (Adjustment of Status)

1. I-130 Petition and I-485 Processing

First the U.S. citizen or permanent resident has to file the I-130 Petition and supporting documentation with the USCIS. The I-130 petition has to be approved and the visa must be available before the adjustment of status form is filed. There is an exception for U.S. citizens who are sponsoring an immediatel relative. Upon approval of the I-130 petition, the visa becomes available immediately. Therefore, the U.S. citizen and the immediate relative can file both the I-130 petition and the I-485 adjustment of status at the same time. Once the adjustment of status form is filed, the relative applicant will need to also attend a finger printing (biometrics) appointment for the background check.

2. The Affidavit of Support (I-864 Form)

If the I-130 petition and the adjustment of status are filed at the same time, then the U.S. citizen petitioner must include an Affidavit of Support. Otherwise, the application may be denied without the Affidavit of Support or delayed during a request for evidence for the Affidavit of Support. The Affidavit of Support is a document that requires the sponsor to disclose the financial means by which they plan to support their relative in the United States. Usually, the sponsoring relative has to show they make at least 125% of the amount on the poverty guidelines, based on the household members, to support a relative applicant. See the required income on the USCIS webpage. If the sponsor does not have enough income to meet the requirements of Affidavit of Support, the sponsor can also add a co-sponsor to the affidavit to supplement the income requirements and the relative can also show a means by which they can help support themselves in the United States. The Affidavit of Support will be reviewed by the immigration officer to determine whether all the income requirements are met before granting the visa.

3. The Interview

Finally, after the long wait, the relative applicant is close to adjusting their status. The USCIS will contact the relative applicant to provide them further instructions regarding doing a medical examination and obtaining any applicable police record. Once at the interview, the immigration officer will screen the applicant for admissibility by asking questions and reviewing the medical examination and police record (if any). If the visa is marriage based, the immigration officer will ask questions that tend to reveal whether or not the marriage is genuine. If the officer renders the relative applicant admissible, the relative applicant will usually be informed at the interview and will be given further instructions to obtain the greencard. If there is a ground of inadmissibility, the officer will usually explain if there is a way to overcome the inadmissibility.

This process can get complicated. You want to be sure to get it right in order to avoid delays and complications. ​Be sure to get an attorney to evaluate your application.

Share this Article