Adjustment of Status (AOS)
AOS is the process by which an individual obtains legal permanent residency while they are present in the United States. For Family Immigration purposes, this benefit is available to spouses, children and parents of United States Citizens and spouses and unmarried children of Legal Permanent Residents.
In most cases, a work permit (Form I-765) is available for adjustment applicants and an applicant may apply for advance parole (I-131) to travel outside the United States during the duration of this process. Often times, an interview at the local USCIS office will be necessary. An Affidavit of Support (I-864) will be necessary if an underlying I-130 petition was filed by a petitioning family member. If the petitioning family member does not have the required income to support an adjustment of status applicant, another party can be used as a joint sponsor for Affidavit of Support purposes.
In a family based adjustment of status, proof must be submitted to USCIS detailing the qualifying family relationship. This evidence is used to adjudicate the underlying I-130 petition which is necessary to allow one to file for an I-485 Adjustment of Status application. An interview at the local USCIS office is part of the Adjustment of Status process. This is always the case for marriage based I-485 applications and also may take place for parent-child applications.
There is also an adjustment of status process for political asylees, religious workers, immigrant investors, victims of domestic abuse and criminal activities; and employment based applicants which entail different procedures than those for family immigration applicants.
Family Immigrant Visa (Consular Processing)
In situations where the beneficiary of family immigrant petition is outside the United States, the permanent residency process is accomplished via consular processing. There are normally three states in consular processing cases. 1) adjudication of the initial I-130 family petition 2) collection of documents and forms by the National Visa Center and 3) the interview at the respective consulate or embassy. Consular Processing can be a frustrating and confusing process that requires much patience and organization. However once successfully completed, the applicant will enter the United States as a legal permanent resident.
Consular processing for an immigrant visa often takes up to a year or longer depending on the respective consulate or embassy. To offset this waiting time, the K-3 visa is available to the spouse of a United States Citizen. Two petitions must be filed to finalize a K-3 visa. An immigrant Petition for Alien Relative, I-130 must be filed first, and once the receipt notice arrives; a subsequent Petition for Alien Fiancé(e), I-129F is filed for the beneficiary spouse and any accompanying children. After USCIS approves the I-129F, it sends it to the National Visa Center (NVC). The NVC sends the petition to the embassy/consulate having jurisdiction over the beneficiary and then the beneficiary spouse completes the process overseas. The K-3 process is supposed to be faster than normal consular processing or the fiancé(e) visa process and is used in situations where the foreign spouse wants to expedite their entry in to the US.
Fiance(e) Visa (K-1)
If an American citizen wants a foreign fiancé(e) to travel to the United States to marry, they must file a Petition for Alien Fiancé(e) ( Form I-129F) with USCIS. Evidence must be presented substantiating that the fianc(e) relationship is bona fide and that the couple had met within two years of the filing of the I-129F. After USCIS approves the petition, it sends the petition to the National Visa Center for processing prior to sending it to the embassy or consulate where the fiancé(e) will apply for a K-1 nonimmigrant visa for a fiancé(e).
After getting the fiancé(e) visa, the fiancé(e) enters the U.S and must marry the United States Citizen within 90 days of entry into the United States. After marriage, the immigrant spouse may apply for adjustment of status by filing an I-485. As a K-1 visa holder, the foreign spouse may also file a Form I-765 for Employment Authorization. The child of a fiancé(e) may receive a derivative K-2 visa from his/her parent’s fiancé(e) petition. The American citizen petitioner must make sure that the child is mentioned in the I-129F petition.
I-751 Petition to Remove Conditions on Residency
Each individual who immigrates to or adjusts status in the United States through a marriage that is less than 2 years old is issued a conditional green card which is valid for two years. Prior to the expiration of the conditional green card, the married couple must jointly submit an I-751 to remove conditional green card status. If the I-751 is approved, the immigrant will be issued a legal permanent resident green card, which will enable the immigrant to live and work in the US permanently.
Within the 90 days prior to when the conditional green card expires, an I-751 must be filed with USCIS. A receipt will be sent by mail once the I-751 is received by the service center. The receipt extends the validity of the conditional green card for one year and can be used for proof of work and travel authorization. After receipt by the service center, there will be a biometric fingerprint appointment and, possibly, an I751 interview. In order to remove conditional green card status, the couple must submit evidence proving a good faith marriage. In short, the documents must help show that there is a bona fide marital relationship and shared financial responsibilities.
The Immigration and Nationality Act (INA) and federal regulations require the Conditional Permanent Resident (CPR) and his/her petitioning USC spouse to jointly file the I-751 petition. However, under some circumstances a joint filing is not possible because of divorce, death of the USC spouse or issues in the marriage. In such situations, the CPR may request a waiver of the joint filing requirement if they can offer evidence that removal from the United States would result in extreme hardship; or they entered the marriage in good faith, but the marriage was terminated through divorce; or the CPR entered the marriage in good faith, but the petitioning spouse or parent battered the CPR spouse or the child of the CPR spouse.
VAWA Self Petition for Abused Spouses & Children
In U.S. Immigration Law, the petitioner controls when or if the petition is filed. Unfortunately, some U.S. citizens and lawful permanent residents (LPRs) misuse their control of this process by physically and emotionally abusing their family members. When this occurs, a battered spouse, child or parent of a battered child may apply for an I-360 self-petition under the Violence Against Women Act (VAWA).
In most cases, I-360 VAWA self-petitions are filed by spouses who are legally married to a U.S. citizen or LPR abusive spouse. In the situation where the abusive spouse dies or the marriage ends in divorce, a self-petition may be filed within the two years of the divorce or death of the abusive spouse. To qualify for this relief the immigrant victim/petitioner must have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or LPR spouse during the marriage.
Furthermore, the I-360 applicant is required to be a person of good moral character and must have entered into the marriage in good faith instead of for the purpose of obtaining immigration benefits. Approval of an I-360 can subsequently result in adjustment of status if the applicant meets the required qualifications. Proving a VAWA case is not easy and will require affidavits, police reports, medical records and additional documentation of the abuse suffered by the applicant(s).