Common Mistakes to Avoid When Applying for Adjustment of Status

What Are the Requirements for Adjustment of Status?

The specific requirements for Adjustment of Status (AOS) in the United States can vary depending on the immigration category and the applicant’s individual circumstances. Below are some common requirements that applicants typically need to meet to be eligible for AOS:

  • Eligibility Category: You must fall into an eligible category for AOS. Common categories include immediate relatives of U.S. citizens, family-sponsored preference categories, employment-based categories, diversity visa lottery winners, refugees, and asylees.
  • Lawful Entry and Nonimmigrant Status: Generally, you must have entered the United States lawfully and have been inspected and admitted or paroled by a U.S. immigration officer. If you have any immigration violations or unlawful presence, you might need to address these issues before applying for AOS.
  • Priority Date: For certain family-sponsored and employment-based categories subject to annual numerical limits (quotas), you must have a current priority date to apply for AOS. The priority date is usually based on the filing date of the immigrant petition that led to your eligibility for AOS.
  • Maintaining Eligibility: You must continue to maintain your eligibility for the underlying visa or immigration status until your AOS application is adjudicated. For example, if you are an employment-based nonimmigrant, you should maintain valid work authorization and maintain your nonimmigrant status until your green card application is approved.
  • Medical Examination: You must undergo a medical examination by a USCIS-approved civil surgeon to demonstrate that you do not have any contagious diseases or physical or mental conditions that would render you inadmissible to the United States.
  • Good Moral Character: Applicants must show that they have good moral character. This typically means avoiding criminal convictions or other behaviors that would raise concerns about character.
  • Affidavit of Support (For Certain Categories): For family-sponsored and some employment-based categories, a U.S. citizen or permanent resident petitioner must submit an affidavit of support (Form I-864) to demonstrate their ability to financially support you.
  • Public Charge Determination: You must not be likely to become a public charge, meaning you should be able to support yourself financially without relying on certain public assistance programs.
  • Admissibility: You must not be subject to any grounds of inadmissibility, such as certain criminal convictions, health-related issues, or security concerns. In some cases, waivers may be available to overcome certain inadmissibility grounds.

It’s important to note that AOS requirements can be complex, and eligibility criteria can change over time. Additionally, each immigration category may have its own specific requirements. Therefore, it is highly recommended to seek guidance from an experienced immigration attorney or accredited representative who can assess your individual situation, determine your eligibility for AOS, and guide you through the application process.

Understanding the 90-day rule

The 90-day rule refers to a policy introduced by the United States Citizenship and Immigration Services (USCIS) that affects individuals who enter the United States on nonimmigrant visas with the intention of getting married to a U.S. citizen or adjusting their status to a permanent resident (green card holder) based on that marriage. The rule is also known as the “90-Day Fianc√© Rule” or “90-Day Engagement Rule.”

The rule was implemented to address concerns over potential visa fraud, specifically situations where individuals on nonimmigrant visas, such as B-1/B-2 tourist visas, use them with the preconceived intention of getting married and filing for Adjustment of Status shortly after arriving in the U.S. The rule is primarily based on the presumption that someone entering the U.S. on a nonimmigrant visa should not have preconceived immigrant intent erratichour.

Here’s how the 90-day rule works:

  • Nonimmigrant Visa Entry: If an individual enters the U.S. on a nonimmigrant visa, such as a B-1/B-2 tourist visa, and then gets married to a U.S. citizen within 90 days of their entry, USCIS may scrutinize their adjustment of status application more closely.
  • Marriage and Adjustment of Status: If the individual marries a U.S. citizen within the first 90 days of their entry, and then applies for Adjustment of Status (Form I-485) based on that marriage, USCIS may evaluate the application with greater scrutiny to determine if the marriage is bona fide (genuine) and not entered into solely for the purpose of obtaining immigration benefits.
  • Presumption of Fraud: While the 90-day rule does not create an automatic presumption of fraud, USCIS may consider the timing of the marriage in conjunction with the applicant’s entry on a nonimmigrant visa when evaluating the AOS application. If USCIS finds evidence of fraud or misrepresentation in the application, it could lead to a denial and potential immigration consequences.

It’s important to note that the 90-day rule does not prevent individuals from getting married within 90 days of their entry on a nonimmigrant visa. However, it serves as a warning that USCIS may closely scrutinize such cases to ensure the validity of the marriage and the applicant’s intentions.

If you are considering marriage and AOS in the U.S., it’s crucial to be transparent and truthful throughout the process. If you have concerns about how the 90-day rule may apply to your situation, it is advisable to seek guidance from an experienced immigration attorney who can provide personalized advice based on your circumstances.

What are the benefits of Adjustment of Status?

Adjustment of Status (AOS) offers several significant benefits to eligible individuals who are already present in the United States and wish to become lawful permanent residents (green card holders). Some of the key benefits of AOS include:

  • Permanent Resident Status: AOS allows individuals to obtain lawful permanent resident (LPR) status, commonly known as a green card. Green card holders have the right to live and work indefinitely in the United States and can enjoy many of the same benefits and protections as U.S. citizens.
  • Freedom to Live and Work: As green card holders, AOS beneficiaries can live and work in any part of the United States without any restrictions imposed by their immigration status.
  • Employment Opportunities: Green card holders have greater employment opportunities, as they are not limited to specific employers or job categories. They can work in any job or profession of their choosing, subject to general labor laws.
  • Travel Flexibility: Green card holders can travel internationally without a visa or re-entry permit. They can leave and re-enter the United States freely, provided they maintain their permanent resident status.
  • Access to Social Services: As permanent residents, individuals are generally eligible to access certain social services, such as education, healthcare, and certain public benefits, just like U.S. citizens.
  • Path to U.S. Citizenship: Green card holders can apply for U.S. citizenship (naturalization) after meeting certain eligibility requirements. Naturalized citizens have additional benefits, such as the right to vote and petition for family members to immigrate to the U.S.
  • Family Reunification: AOS allows eligible individuals to unite with their immediate family members (spouse, children, and parents) in the United States.
  • Education Opportunities: Green card holders can pursue higher education in the United States at in-state tuition rates, which are generally lower than rates for international students.
  • Protection Against Deportation: As lawful permanent residents, individuals are generally protected from deportation unless they commit certain serious crimes or violate specific immigration laws.
  • Work Authorization for Spouses: In certain employment-based AOS cases, the spouse of the primary beneficiary may also receive work authorization while the green card application is pending.

It’s important to note that AOS eligibility and benefits can vary based on the individual’s immigration category, family relationship, or employment situation. Additionally, green card holders are subject to certain obligations, such as maintaining residency, paying taxes, and registering for selective service (for males between 18 and 26 years old). For personalized advice on Adjustment of Status and its benefits, individuals should consult with an experienced immigration attorney.

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