Introduction
Among the rights and privileges of being a Legal Permanent Resident (LPR) or U.S. Citizen is the ability to sponsor certain family members so that they can become lawful permanent residents or “green card” holders in the U.S. The Form I-130, Immigrant Petition for Alien Relative, is used method by US citizens or LPR’s to petition eligible family members so they can come to the U.S. to live permanently
The Adjustment of Status process allows these eligible foreign national relatives of U.S. Citizens and LPR’S who are physically present in the U.S. to obtain their Green Card without having to return to their home country to complete Immigrant Visa processing at a US Consulate.
In order to file an Adjustment of Status, an immigrant visa number must be immediately available and, generally, only individuals lawfully present in the U.S. can file an Adjustment of Status.
There are generally 2 steps in the I-130 process. The first step is the Form I-130, which establishes the familial relationship. The second step is for the foreign national relative to apply for an immigrant visa at a US Consulate or file Adjustment of Status.
Step 1: Filing The I-130
1.Determine Eligibility
The first step in filing the Form I-130 is to determine the foreign national’s eligibility to have a Form I-130 filed on their behalf. There are two main categories of relatives that are eligible to be beneficiaries for the Form I-130– Immediate Relative of U.S. Citizens and Other Relatives of U.S. Citizens and Relatives of Legal Permanent Residents.
a.Immediate Relatives of U.S. Citizen
Immediate relatives of U.S. Citizens include their spouse, unmarried children under 21 and parents. Unlike most other Green Card applicants, these individuals are not subject to any quotas, making them immediately eligible for an immigrant visa number upon approval of the I-130.
Note: In the case of immediate relatives, the U.S. Citizen must file a separate I-130 for each relative. This means that if the U.S. Citizen has a wife and 2 children abroad, he must file a separate I-130 for each individual. Also, a U.S. Citizen would have to file two separate I-130’s for each parent.
b.Other Relatives of U.S. Citizens and Relatives of Legal Permanent Residents
Other relatives of U.S. Citizens who may be sponsored are unmarried sons and daughters over the age of 21 (F1), married sons and daughters (F3) and siblings (F4).
The relatives of legal permanent residents who may be sponsored include the spouse and unmarried children under 21 (F2A) and unmarried sons and daughters over the age of 21 (F2B).
Note: In the case of the relatives in this second broad category, accompanying family members (spouse and/or unmarried children under 21) may be able to join the main beneficiary in adjusting status or coming to the U.S. without a separate petition. For example, if a U.S. Citizen was filing for his unmarried 24-year-old daughter who had a 2-year-old son, the child would be able to file an adjustment of status application or accompany his mother to the U.S. as a “derivative beneficiary.” This is true for all cases in this second category.
Unlike the Immediate Relatives of a U.S. Citizen, Other Relatives of U.S. Citizens and Relatives of Legal Permanent Residents categories are subject to statutory quotas and only a certain number of people are eligible for an immigrant visa number each fiscal year under these categories. Each category of individuals described here has its own quota which is then subdivided by country. Because so many people apply in these categories, the quotas get over-used or “over-subscribed,” meaning a backlog result. Individuals in these categories can be waiting for one or two years or even 30+ years to be able to apply for adjustment of status or apply for an immigrant visa at a U.S. Consulate abroad, depending on the category they fall into.
2.Collect Documents
The main focus of the I-130 petition process is to document the relationship. In most cases, as in the case of parents and children, a birth certificate or secondary evidence of parentage will suffice. The same goes for the siblings of U.S. Citizens, who will each have to provide a birth certificate to show that they share at least one parent. In the case of spouses, additional evidence will need to be submitted to document not only that the marriage is legal (i.e., a marriage certificate) but also evidence that the marriage is bona fide (i.e., evidence that the marriage was not entered into for the sole purpose of gaining US immigration benefits).
3.File The I-130 At The Correct Lockbox
Generally, the U.S. Citizen or legal permanent resident filing for his/her family member must file the I-130 petition with any required and supporting documents and the filing fee with the USCIS Chicago or Phoenix lockbox, depending on where the U.S. citizen or LPR lives or if an AOS application is being concurrently filed.
My Case Scenario
Jake
Jake, a U.S. Citizen, filed an I-130 petition on behalf of his brother John, an Australian national about 10 years ago in the F4 category (siblings of US Citizens). John is in now in the U.S. in H-1B status. Jake and John just found out that a visa number is about to become available for those who filed on or before the date that Jake filed the I-130. Can John file an Adjustment of Status (AOS) application? Can his wife and kids (all under 21) who are in the U.S. in H-4 status file
Yes. Since John is in the U.S. in lawful status (H-1B) and presumably has maintained his status, he can file an AOS application as soon as visa numbers become available (his “priority date becomes current”). Also, as John’s wife and kids are derivative beneficiaries of his I-130 filed by Jake, they can each file an Adjustment of Status application as well.
Step 2: The Adjustment of Status Process
1.Form I-485 and Required Documents
Adjustment of Status or “AOS” is the process by which an eligible foreign national who is physically present in the United States can obtain permanent resident status (a Green Card) without having to return to their home country to complete immigrant visa processing at a U.S. Consulate. The term for a change to permanent resident status while in the U.S. is called “adjustment of status.”
The Form I-485, Application to Register Permanent Residence or Adjust Status, is the only form that applicants in the U.S. can use to adjust status to that of permanent resident status. This application, along with certain other applications (see below) and initial evidence must be filed by the foreign national relative in order to gain legal permanent resident status. Please note that there is an additional filing fee associated with the AOS application in addition to the I-130 filing fee.
Note: Each family member must submit his or her own application even if the family members are derivative beneficiaries (the spouse or children of the main beneficiary of the immigrant petition). This means that if a US Citizen sponsored his brother by filing a Form I-130, his wife and children would each need a separate I-485 if eligible to file an AOS application.
In order for a foreign national relative who is in the U.S. to file the AOS application, he or she must:
- Have a visa number immediately available;
- Have entered the country and have been inspected;
- Be in lawful status at the time the AOS application is filed.
There are limited exceptions to the 2nd and 3rd requirement. Two of the most common exceptions are:
a.Immediate Relatives of U.S. Citizens
Immediate Relatives of U.S. Citizens (spouse, parents and/or children under 21) can generally apply for AOS even if they are not in lawful status at the time the application is filed. It is still required that the foreign national relative have made a valid entry with inspection in order to adjust.
b.Statutory exceptions to requirement for “lawful entry” or maintenance of status
Certain individuals who entered the U.S. without inspection (“entered without inspection” or “EWI”) and/or have not maintained lawful status in the U.S. may be eligible to adjust status if they qualify for a statutory exception. You must speak with an attorney to see if any of the statutory exceptions apply.
Along with the Form I-485, each applicant must also submit:
i.Proof of the pending or approved I-130 (unless filed concurrently- see below);
ii.Copies of civil documents including birth certificate, marriage certificate(s), divorce certificate(s), and any other official documents depending on the type of relationship the application is based on;
iii.Proof of lawful entry (usually a copy of the Form I-94, Arrival-Departure record) and/or entry stamp in the passport (or proof that they qualify for an exception);
iv.Proof of lawful maintenance of status (or proof that they qualify for an exception);
v.Dispositions of Convictions or any other documentation regarding arrests and/or convictions
2.Affidavit of Support
When filing the AOS application, the U.S. citizen or LPR petitioner must establish that the relative beneficiary will not become a public charge submitting Form I-864 and the appropriate supporting documents. If the petitioner is unable to support the relative financially, financial support can also be shown by showing the financial resources of other individuals in the household, through a co-sponsor or, in some instances, the assets of the foreign relative applicant. For more information on the Affidavit of Support, please click here.
3.I-130 and I-485 Concurrent Filing
The I-130 and I-485 can be filed “concurrently” or filed at the same time/together IF an immigrant visa number is immediately available.
Immediate Relatives are always eligible for concurrent filing as they are not subject to any quotas and an immigrant visa is always immediately available.
It is rare that the other categories of family-based Green Cards are not over-subscribed to allow applicants to concurrently file. However, if at the time of filing the I-130 the Visa Bulletin shows that the immigrant visas are available in these other categories (shows “C” for current), then an I-130 and I-485 can be concurrently filed.
Furthermore, in these other family-based categories, if an immigrant visa number does become available after the I-130 filing but before the approval, an I-485 can be filed at that time. It’s important to remember that for all family-based categories except Immediate Relatives of U.S. citizens, the foreign national family member must be in lawful status in order to file an AOS application (see above).
Note: It is important to remember that when checking the Visa Bulletin, the Dept. of State publishes 2 charts- the Final Action Dates and Dates of Filing. USCIS makes the determination every month regarding which chart to follow for Adjustment of Status purposes and publishes it here. It is important to check both the DOS Visa Bulletin and the USCIS Adjustment of Status Filing Chart before filing the AOS application.
4.Employment Authorization and Advance Parole
Applicants for AOS may also file applications to obtain work authorization (Employment Authorization Document, Form I-765) and permission to travel (Advance Parole, Form I-131) while they await issuance of the Green Card. Generally, most applicants can file the applications together with the AOS.
Note: Generally, if the I-765 and I-131 are submitted concurrently with the AOS application, the advance parole and travel permit should be issued together on one document. This means that the card that the AOS applicant receives from USCIS will be valid for both work and travel. USCIS may still issue a separate advance parole document and employment authorization document in certain circumstances.
a.Form I-765, Application for Employment Authorization (“Work Permit”)
The EAD card allows the applicant to accept employment in the U.S. from any employer, for any type of employment. The applicant will not be authorized to work in the U.S. until the EAD card is issued or until s/he receives the Green Card, unless s/he has another visa status that authorizes employment like H-1B, L-1, O-1, etc.). The card is generally valid for 1 year from the date of issuance and is renewable until the AOS application is adjudicated (Green Card is issued or denied).
Additionally, the EAD card allows individuals to apply for a Social Security Number if they have not otherwise obtained one previously.
b.Form I-131, Application for Travel Document (Travel Permit)
The Advance Parole allows AOS applicants to re-enter the U.S. after international travel. It is important to remember that once the AOS is filed, the applicant risks abandoning the entire AOS application if he or she travels abroad without an approved Advance Parole document.
Note: An exception has been carved out for individuals in H-1B, L-1 or K-3 status. These individuals may continue to travel on their nonimmigrant visas even after filing an AOS and do not have to wait for an AP to be approved. It is important that these individuals are maintaining their nonimmigrant status.
Please note that if an emergency does arise which requires the foreign national spouse to travel abroad before issuance of the travel permit, there are processes in place at USCIS Field Offices and Service Centers to issue expedited and emergency travel documents.
Note: When granting AP, USCIS does not evaluate the applicant’s eligibility to travel. What this means is that USCIS’ grant of AP does not mean it is necessarily safe for you to travel abroad. Those with long periods of unlawful presence or unauthorized stay are generally subject to the three or ten-year bars if they leave the U.S. Travel outside the U.S. triggers the bar. While a BIA decision states that travel on AP should not trigger the bars, it is in the applicant’s best interest to seek legal counsel before traveling if he or she has been in the U.S. unlawfully for any period of time..
5.Medical Examination
Form I-693 Report of Medical Examination And V accination Record Medical, must be submitted to USCIS before the AOS can be approved. A medical examination is a necessary part of the application for adjustment of status to determine if a health-related ground for denial of admission exists and to determine if the applicant has received all the required vaccinations. The applicant must arrange a medical examination with a doctor or “civil surgeon” designated by USCIS.
Note: The completed Form I-693 must be submitted in an envelope sealed by the civil surgeon and cannot be opened by anyone except the examining officer at USCIS.
6.Biometrics
Shortly after submitting the I-485 application package, applicants will be scheduled for “Biometrics” at an Application Support Center where his or her fingerprints and photos will be taken so that USCIS can run the requisite background checks. Once the biometrics has been completed, the applicant will have to wait for the background checks to be completed before they are scheduled for a final adjustment of status interview. Applicants younger than 14 and older than 75 will not be fingerprinted.
7.The Adjustment of Status Interview
Once the fingerprinting is done and the background checks are completed, the applicant will likely have to appear for a personal interview. The interview will be with a USCIS Adjudications Officer and will be held at a USCIS field office having jurisdiction over the applicant’s residence as listed on the I-485. USCIS will send each applicant an appointment notice, usually about 2-4 weeks in advance of the interview. Generally, the U.S. citizen or LPR petitioner who filed the I-130 is also required to attend the interview.
For most Green Card applicants, the USCIS interview is the most nerve-wracking part of the entire process. In the case of most relative petitions, the interview is primarily to verify the authenticity of the documents submitted and to make sure that the applicant is eligible to become a legal permanent resident.
In cases where the application is based on marriage, the officer will also ask questions to ascertain whether or not the marriage is actually bona fide or real. This is especially true in cases where the marriage is relatively short in duration or where there has been a long separation, physically, between the spouses.
It is very important that each AOS applicant be thoroughly prepared for the interview. The applicant should review a copy of all the application forms that have been submitted. Applicants must bring with them their passport, the original of the documents listed above and any other documents requested by the Field Office.
Note: Applicants should bring with them evidence that the relationship between the U.S. relative and the applicant has been maintained. This is especially true of spouses of U.S. citizens and LPR’s.
TIP
Some derivative beneficiaries of a family petition may not be able to adjust with the rest of the family because he or she has turned 21 years of age or will turn 21 by the time a visa number becomes available. These individuals may be in the U.S. in a status that is dependent on one of their parents. It is important these individuals plan ahead and establish their own independent visa status in order to remain in the U.S. legally.
Step 3: After The I-130 And Adjustment of Status Are Approved
1.The Green Card
Customarily, the I-551 or the actual Green Card arrives within a few weeks of the USCIS interview. The Green Card is sent to the address provided on the Form I-485. The Green Card is sent by USPS Priority Mail and can be tracked. Tracking Information can be found online at USCIS Case Status Online or by calling USCIS National Customer Service at the number provided on the I-485 receipt notice.
The U.S. Postal Service will not forward the Green Card if the mail-to address has changed.
2.Derivative Beneficiaries Who Are Abroad
If the derivative beneficiaries of an I-130 Petition were not in the U.S. and could not file Adjustment of Status, they are still eligible to obtain a Green Card by a process called “follow to join”. The primary beneficiary will need to submit Form I-824, Application for Action on an Approval Application or Petition upon receipt of the Green Card (in some instances, it can be submitted at the AOS interview) so that USCIS can inform the National Visa Center to process the Green Card applications of the derivative beneficiaries.
4.Removal of Conditions
Spouses of U.S. Citizens or legal permanent residents who obtain immigrant visas through the I-130 process are given “conditional resident” status if their marriage was less than 2 years old on the date of the issuance of permanent residence (the date the AOS was approved). These individuals receive a Green Card that is only valid for 2 years. In the 90 days preceding the expiration of the Green Card, these individuals must apply to “Remove the Conditions.” To learn more about Removal of Conditions please click here.
5.Naturalization And U.S. Citizenship
Most LPR’s can apply for U.S. Citizenship after 5 years. Those married to U.S. Citizens can apply after only 3 years. For more information on how to become a naturalized U.S. Citizen, please click here.
TIP
If the Green Card is lost/doesn’t arrive and a replacement must be ordered, then the new lawful permanent resident may make an InfoPass Appointment at the local USCIS Field Office to request a temporary I-551 Stamp that will be valid for 1 year.
Conclusion
The Adjustment of Status process allows eligible relatives of U.S. Citizens and LPR’S, who are physically present in the U.S., to obtain a Green Card without having to return to their home country to complete Immigrant Visa processing. While many can be reunited with their U.S. relatives in a matter of months, the process can be quite complicated and can actually keep families separated for very long if the right steps are not taken.
VisaPro attorneys successfully help U.S. Citizens, Green Card holders, and their foreign national relatives through the I-130 and Adjustment of Status process.
Contact VisaPro if you are a U.S. Citizen or Green Card holder, intending to bring your family to the U.S. Our experienced attorneys will be happy to assist you.
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