Visa Lawyer Blog

Articles Posted in Adjustment of Status

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What is Adjustment of Status?

Adjustment of Status is the process by which a foreign national can change their immigration status from a temporary nonimmigrant to an immigrant (permanent resident), while in the United States. There must be a basis under which a foreign national can apply for adjustment of status. In most cases the foreign national must have an immediate relative who is a U.S. Citizen or have an employer willing to file an immigrant petition on their behalf.

Generally, a foreign national can apply for adjustment of status, if they were inspected by a customs official at a United States port of entry and admitted or paroled into the United States, and meets all requirements to apply for a green card (permanent residence). The Immigration and Nationality Act (INA) allows an eligible foreign national already living in the United States with their U.S. Citizen spouse, to obtain permanent resident status without having to return to their home country to apply for an immigrant visa at a United States consulate abroad. Spouses of U.S. Citizens are eligible for adjustment of status to permanent residence once the US Citizen spouse files a petition on their behalf called the I-130 Petition for Alien Relative. The I-130 Petition for Alien Relative is typically filed at the same time (concurrently) as the I-485 Application to Register Permanent Residence or Adjust Status. For immigration purposes, the intending immigrant (or foreign national) is referred to as the ‘beneficiary’ of the application, while the U.S. Citizen spouse is referred to as the ‘petitioner’ of the I-130 application. The petitioner allows the beneficiary to apply for adjustment of status on the basis of their marital relationship (established with the filing of the I-130 Petition).

In general, most immigrants become eligible for permanent residence once an immigrant petition is filed on their behalf by either a qualifying family relative (I-130 Petition) or through an employer (I-140 Petition) although there are special categories of green card applicants that exist. Unlike distant relatives of U.S. Citizens and alien workers, spouses and immediate relatives of U.S. Citizens are not subject to any visa limitations. This means that they do not need to wait in line to receive permanent residence; an immigrant visa is immediately available to them and there are no quotas. The process of immigrating a foreign spouse through adjustment of status takes approximately 4-6 months depending upon the volume of adjustment of status application being processed by USCIS at the time of filing, and the amount of applications waiting in line for an interview at your local field office.

Spouses of U.S. Citizens residing abroad are not eligible for adjustment of status

For spouses of U.S. Citizens residing abroad, adjustment of status is not an option because the intending immigrant and U.S. Citizen spouse must be living together in the United States in order to apply. Instead, spouses of U.S. Citizens who are living abroad must resort to consular processing, in order to obtain an immigrant visa and permanent residency. Consular processing is also utilized to immigrate a foreign spouse who is ineligible to adjust status, for example in the case where the foreign spouse entered the United States illegally.

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We would like to wish you and your families a very Happy Independence Day on behalf of our office! Have a safe and relaxing weekend!

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Last week our very own managing attorney Jacob Sapochnick, Esq., and associate attorney Yingfei Zhou, Esq. had the pleasure of attending the 2016 American Immigration Lawyers Association (AILA) Conference on Immigration Law in Las Vegas, Nevada. Together, they bring you the most up to date information on the new N-400 online filing system and new N-400 form, the new customer service tool EMMA—a computer-generated virtual assistant, information regarding delays in adjudication of H-1B extension/transfer applications and Employment Authorization applications, filing tips for H-1B extensions, updates on EB-1C Multinational Executive/Manager green cards, Employment Authorization eligibility for spouses of E-2 and L-1 visa holders, and updates on Administrative Appeals Office (AAO) Decisions.

New Naturalization Form and N-400 Online Filing System

  1. USCIS recently published a new N-400 form on 04/13/2016. Applicants may use the previous 09/13/2013 version until 08/09/2016. Any naturalization applications received on or after 08/10/2016 containing the old form with revision date 09/13/2013 will be rejected and returned to the sender.
  1. USCIS is currently testing a new N-400 online filing system. This system will be available to applicants without legal representation and will eventually become available to applicants represented by an immigration attorney.

New Customer Service Tools EMMA

  1. USCIS is introducing a new customer service tool called EMMA – a computer-generated virtual assistant who can answer your questions and even take you to the right spot on the USCIS website. EMMA is USCIS’ version of ‘Siri’ and is designed to help you navigate the USCIS website. EMMA is available in the Spanish language. So far, EMMA has managed to answer 80% of questions asked.

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If you have filed your green card application with USCIS, you are probably asking yourself whether you can travel internationally (yes we mean Mexico too) while your application is in process. After all, filing the green card application is admittedly a stressful process for both the applicant and petitioner. Accomplishing this achievement is worth celebrating.  To reward yourself you may be aching to celebrate your newfound immigration status by going on holiday or taking that important business trip you and your business partners have been discussing.

Travel Authorization for Re-entry

Not so fast!! You cannot travel internationally unless you have received a travel authorization document from USCIS, known as an advance parole document. You are required to obtain such travel authorization if you seek to re-enter the United States after temporary foreign travel. To do so, you must file Form I-131 Application for Travel Document with USCIS. For applicants filing a green card application based on their marriage to a U.S. Citizen, the I-485 and I-131 application is typically filed concurrently. There is no fee for the I-131 application if it is submitted along with Form I-485. It takes approximately 90 days, from the date the I-131 application is received, for USCIS to issue this travel authorization. Once the travel authorization is received, it would no longer be worth traveling outside of the country, because applicants typically receive their “interview notice” in the mail during this time frame. The interview notice will contain the date, time, and location of the green card interview and require the applicant to be physically present in the United States. In emergency situations, it is possible to reschedule the green card interview although this will obviously delay receipt of the green card.

Emergency Expedite Requests

Although it is possible to request an expedited advance parole document in emergency situations, there are important reasons why you should not do so. Firstly, the process for expediting an advance parole document is extremely difficult. You must have a legitimate reason for making an expedite request. Attending a business conference, your best friend’s wedding, or going on your honeymoon are not legitimate reasons for making an expedite request. Even in emergency situations such as the death or serious illness of a relative, we have seen immigration officers repeatedly deny expedite requests. Secondly, you are required to be physically present in the United States in order to attend your biometrics appointment for fingerprinting (within 3-4 weeks of filing the green card application) and later to attend your in person green card interview before an immigration officer (within 3-4 months of filing your application).

Taking these factors into consideration, it is important for applicants to plan accordingly. Never make any travel commitments until you have at least received your travel authorization/advance parole document from USCIS. Keep in mind that you will be required to return to the United States in order to attend your in person green card interview. If you do not appear on your scheduled interview date your application will be denied. Do not let this happen to you.

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Did you know that if you fail to provide USCIS written notice of a change of address, within 10 days of moving to your new address, you may be convicted of a misdemeanor crime?  If you currently have a case pending with USCIS, and you fail to provide written notice of a change of address to USCIS, within 10 days of moving, you could face a fine of up to $200, imprisonment up to 30 days, or both if convicted. If you are an alien (non U.S. Citizen) you could also face removal from the United States for non-compliance (INA Section 266(b)).

It is extremely important for applicants to notify USCIS immediately upon moving to a new address. Filing a change of address with USCIS is easy and it’s free. Applicants may change their address online by visiting the USCIS website and completing Form AR-11 online. In order to file a change of address online, you must know the Receipt Number (appearing on the Notice of Action) associated with your application, if your application is currently pending with USCIS. A Receipt Number is also known as the case number, identifying the petition submitted. The Receipt Number typically begins with three letters and is followed by ten digits.

The first three letters of the Receipt Number indicate the USCIS service center which is processing the petition, as follows:
– EAC – Vermont Service Center;
– WAC – California Service Center;
– LIN – Nebraska Service Center; and
– SRC – Texas Service Center

If you have filed more than one petition with USCIS (as in cases of adjustment of status for spouses of U.S. Citizens) you must provide the receipt number of each petition you have filed, when submitting the change of address online. If you do not have your receipt notice or have lost it, you should contact USCIS National Customer Service Center by telephone for assistance:

Our number is: 1 (800) 375-5283
Our TTY number is: 1 (800) 767-1833

If you are outside the United States and have filed an application or petition with a USCIS Service Center, you can call 212-620-3418 to check the status of your case.

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Throughout the next few months, USCIS will begin the process of returning H-1B petitions that were not selected in the H-1B lottery for fiscal year 2017. Each package will contain the respective H-1B petition along with a rejection notice specifying that the petition was not selected in the lottery. If you would like a copy of your rejection notice, please contact your employer or the attorney that filed your petition with USCIS. If you were not selected in the H-1B lottery for fiscal year 2017, there are a few visa options you may want to consider applying for. As always you can visit our website to read about the various different visa types that may be available to you. To discuss your options moving forward, please contact us for a consultation. Do not despair. Many applicants that were not selected in the H-1B lottery in previous years, have been chosen in subsequent years.

Long Term Options for Employment

Employment-Based Green Card

Typically, the employment-based green card application is the most permanent long term option for employment. The drawback is that obtaining an employment-based green card is a very long process that will require you to maintain another nonimmigrant status, while your green card application is pending. For more information on employment-based green cards please click here.

Family-Based Green Card (Adjustment of Status within the United States)

If you are the spouse, parent or child of a U.S. citizen, you may be eligible for family-based permanent residency. The green card application includes the application for employment authorization, which is granted within 3 months of filing. Employment authorization allows the applicant to work while their application is in process. Please be aware that the 3-month time frame for employment authorization is only for applicants applying for adjustment of status from within the United States. For more information about this process please click here.

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8168034654_b59a79c5ba_bConditional Permanent Residence

If you have received a two-year conditional permanent resident card, based on your marriage to a United States citizen, you are required to remove the conditions on your green card before the expiration date, by filing the Form I-751 Application for Removal of Conditions jointly with your spouse. Many clients often ask, “how do I know if I am a conditional permanent resident?” You will know if you are a conditional permanent resident if your green card contains the abbreviations ‘CR’ under the immigrant ‘category.’ Foreign spouses of US Citizens will be able to locate the abbreviation ‘CR 6’ on their green cards. If this abbreviation applies to you, you must file the I-751 removal of conditions application jointly with your spouse, within the 90-day window immediately before your conditional green card expires. For example, if your two-year green card expires on August 7, 2016, the earliest day to file your removal of conditions application would be May 9, 2016 up to the date of expiration. If you are no longer married to the US Citizen spouse through which you gained conditional permanent residence, you may seek a waiver of the joint filing requirement and file the application alone.

Proper and Timely Filing of the I-751 Removal of Conditions Application

USCIS must receive your properly completed removal of conditions application along with the filing fee, during this 90-day window, otherwise your application will be rejected if you do not have a legitimate reason for filing your application outside the deadline. If you are unsure of the time period in which you must file your I-751 application, you should consult with a licensed immigration attorney early on in the process. If you have decided to file the I-751 application on your own, without the assistance of an attorney, you must read the I-751 Form Instructions VERY CAREFULLY and contact the USCIS National Customer Service Line with questions.

Why do I need to file the removal of conditions application?

USCIS grants two-year conditional green cards to foreign spouses of U.S. Citizens, if the foreign spouse has been married to the US Citizen spouse for less than two years (on the date that they are granted permanent residence). Foreign spouses who have been married to their US Citizen spouse for more than two years (on the date they are granted permanent residence), receive permanent ten-year green cards. Permanent residents, as opposed to conditional permanent residents, do not need to file the I-751 removal of conditions application, because they already have been granted the ten-year green card.

Clients typically ask us; why must I file the removal of conditions application if I have already gone through the rigorous green card process with my spouse?

USCIS requires you to jump yet another hurdle in order to ensure that you have entered your marriage in good faith, and not to gain an immigration benefit. The I-751 therefore, is a fraud prevention mechanism for newly married couples, requiring them to prove that they did not get married to evade the immigration laws of the United States. As part of the removal of conditions application process, the couple must provide documented evidence showing that they have been living together from the date of marriage to the present (joint lease agreement), that the couple has commingled their finances during their marriage (joint income tax returns, joint bank accounts, joint insurances, joint loans, etc.), that the couple shares joint responsibility of assets and liabilities within the household (joint utility bills, joint insurance policies, joint financial responsibilities), and that the couple spends time together on a regular basis (photographs of the couple from date of marriage to present, phone records, e-mails, text-messages, social media correspondence, hotel/flight reservations, evidence of joint trips taken together, affidavits from friends and family members, etc.)

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The U.S. Department of State (DOS) recently released the June Visa Bulletin. The Chief of Visa Control and Reporting Division, Charles Oppenheim has provided new insights and developments pertaining to the June 2016 Visa Bulletin. Cutoff dates listed below form part of the final action (FA) chart of the Visa Bulletin. Currently, USCIS has advised adjustment of status family-sponsored and employment-based applicants to refer to cutoff dates that appear on the final action chart for the month of June, and not the date of filing chart.

Employment-Based, First Preference (EB-1)

Demand for the EB-1 category remains at a very high level. DOS has said that should demand continue to remain at the same rate, some form of “corrective action” would be necessary before the close of the fiscal year to regulate worldwide visa numbers. This may require the establishment of a cutoff date or other form of regulation.

India Employment-Based, Second Preference (EB-2)

Demand for the EB-2 category is also very high. Due to increasing demand, there will no longer be unused numbers available in excess of the normal EB-2 per-country limit. EB-2 Worldwide and EB-2 India demand is expected to increase. The high level of demand for visa numbers in the EB-2 India Category and lack of excess numbers from EB-2 worldwide has caused the EB-2 India final action date to retrogress to October 1, 2004 for the month of June.The DOS expects that the EB-2 India cutoff date will advance slowly for the rest of the fiscal year, at a pace similar to the EB-3 advancement.

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In this segment, we answer 4 of your most frequently asked questions received on our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office to schedule a free first time consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office. For more information on the services we offer please click here.

Consular Report of Birth Abroad (CRBA) and the Affidavit of Support

Q:  I am a US Citizen married to a foreign national. We have a child together. We recently moved to the United States from abroad.  My husband and son entered the United States on a B-2 visa and we are planning to apply for their adjustment of status. My question is regarding the Form I-864 Affidavit of Support. I have just secured employment and will be able to sponsor my family. I want to know what documents are required in support of the Affidavit of Support as proof that I have sufficient income to support my family. At the moment I do not have pay stubs. I plan to start my employment next month.

A: Thank you for your question. If your child was born abroad, your child may acquire U.S. Citizenship by filing for a Consular Report of Birth Abroad (CRBA, Form FS-240) before your child reaches their 18th birthday. To do so, the U.S. Citizen parent must report the birth of the child at their nearest U.S. Embassy or Consulate. Anytime that a child of a U.S. Citizen parent is born abroad, the parent must report the birth to nearest U.S. Consulate as soon as possible. This will allow the Consulate to issue a Consular Report of Birth Abroad as an official record of your child’s claim to U.S. Citizenship. The CRBA may be used as proof of your child’s U.S. Citizenship and allows the child to obtain a U.S. passport. A child with a consular report of birth abroad receives the same privileges as a child born in the United States. It is recommended that you first contact your closest U.S. embassy or Consulate before filing a petition for your son, because it is likely that you will not need to go through the immigration process for your son.

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On May 04, 2016 the Department of Homeland Security published a proposed rule in the Federal Register, announcing that filing fees for many USCIS petitions and applications are expected to increase for U.S. employers and foreign nationals. The proposed regulation stipulates that filing fees may be adjusted for certain immigration and naturalization benefit requests by USCIS. The increase in filing fees was considered after USCIS conducted a comprehensive review of its fees and found that the current fees do not cover the cost of services provided by USCIS. According to USCIS, in an effort to fully recover costs and maintain adequate services, “an adjustment to the fee schedule will be necessary”. According to the regulation, fees for most employment-based petitions and applications would be raised by an average of 21%, though other types of petitions may experience a higher increase in filing fees.

According to DHS, the higher fees will more accurately reflect the current cost of processing immigration applications and petition. A portion of the increased fees would provide additional funding for refugee and citizenship programs as well as system support for interagency immigration status verification databases.  The increase in filing fees will not take effect until the federal government approves the regulation, which is expected to take several months following the close of the 60-day comment period on July 5, 2016.

According to the new fee schedule under consideration, employment-based petitions would be the most impacted by the increase in filing fees. The filing fee for Form I-129, Petition for a Nonimmigrant Worker, would increase by 42% to a fee of $460, from the current rate of $325.  Similarly, the filing fee for Form I-140, Immigrant Petition for Alien Worker, would increase by 21% to a fee of $700, from the current rate of $580. The complete fee schedule under consideration has been provided below for your reference.

The EB-5 Immigrant Investor Visa Program is expected to be the most heavily affected by the new fee schedule. The filing fee for Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program, would increase by a rate of 186% requiring Regional Centers seeking designation under the program to pay a filing fee of $17,795 instead of the current rate of $6,230. In addition, Regional Centers would be required to pay a $3,035 annual fee to certify their continued eligibility for the designation. Currently, there is no fee in place for annual certification. The filing fee for the I-526 Immigrant Petition by Alien Entrepreneur, an application associated with the EB-5 visa program, would also increase to a rate of $3,675, a 145% increase up from the current rate of $1,500. The filing fee for an investor’s petition to remove conditions on residence would remain unchanged under these new regulations.

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