Adjustment of Status – Family Based
After a Lawful Permanent Resident of the U.S. or a U.S. Citizen has received an approval of an family-based immigrant petition for a foreign national family member (see I-130 Immediate Relative and/or I-130), once the priority date (if applicable) is current, the foreign national family member may proceed with the second stage of the green card process, by either filing for adjustment of status from within the United States or can pursue their lawful permanent resident status from outside the United States through Immigrant Visa Processing (IVP). In some cases, assuming the foreign national family member is eligible for adjustment of status, both the I-130 and the adjustment of status paperwork may be filed concurrently.
Requirements for Family-Based Adjustment of Status
The main requirements for a foreign national to apply for adjustment of status (green card) from within the U.S. based on their approved family-based immigrant petition are (1) to be physically present in the U.S., (2) to have last entered the U.S. lawfully (after inspection and admission by a U.S. immigration official), and (3) to be admissible to the United States (a foreign national’s eligibility may be effected if the foreign national has a previous criminal or immigration history that may render them inadmissible to the United States, or if they have failed to maintain their status in the U.S. or worked without authorization.) See INA §245.
If the foreign national is not physically present in the U.S., or did not last enter the U.S. lawfully, they may be able to apply for lawful permanent resident status through Immigrant Visa Processing (IVP). If the foreign national is inadmissible to the U.S. as a result of previous criminal or immigration violations, they may be able to apply for waiver(s) to waive those grounds of inadmissibility.
Applying for Family-Based Adjustment of Status
Applying for Adjustment of Status requires submitting a comprehensive package to USCIS emphasizing the legitimacy of the marital relationship as well as the applicant’s eligibility for adjustment of status. The main form is:
§ I-485 – Application to Adjust Status
Additional ancillary forms to be submitted include:
§ I-693, Medical Exam Results
§ I-864, Affidavit of Support (applicable version)
Lastly, to establish or preserve employment eligibility and travel privileges (especially if the foreign national will not continue to maintain their nonimmigrant status or is not in current nonimmigrant status), other forms that may be submitted include:
§ I-765, Application for Employment Eligibility
§ I-131, Application for Advance Parole
Caution: Once an application for adjustment of status has been filed, the applicant may not be able to depart the U.S. until advance parole is issued (in certain situations, if the applicant is an H or L nonimmigrant who is concurrently maintaining their nonimmigrant status, they may be able to depart the U.S. without facing adverse consequences). Should an applicant depart the U.S. while the application is pending, but before advance parole is issued, they may be considered to have abandoned their application to adjust status.
Document Requirements for Family-Based Adjustment of Status
I-130 Approval Notice
The I-130 is the form that the U.S. citizen or Lawful Permanent Resident should have filed and subsequently received an approval notice. The purpose of the form is to establish the legitimacy of the familial relationship, as well as the petitioner’s status as either a U.S. citizen or Lawful Permanent resident.
Form I-485 – Adjustment of Status
The I-485 is the form that the foreign national family member must file to apply for adjustment of status within the U.S. The I-485 form inquires about an individual’s status in the U.S., any prior immigration or criminal problems, and any other issues that may cause an individual to be inadmissible to the U.S. or be ineligible to adjust status within the U.S.
One of the fundamental requirements to be eligible to adjust status is that foreign national family member last entered the U.S. lawfully (i.e. after inspection by U.S. immigration officials). If the foreign national has since failed to maintain status and/or worked without authorization in the U.S., they may not be able to adjust their status from within the U.S.
If the foreign national family member last entered the U.S. without adhering to the proper inspection procedures, they will likely not be eligible to adjust status, but may be eligible for IVP (with or without a hardship waiver or any other applicable waivers).
Form I-693, Medical Exam Results
The Form I-693 is used to determine whether the foreign national family member is inadmissible to the United States on medical grounds. The medical examination must be completed by a USCIS approved civil surgeon. A list of USCIS approved civil surgeons can be found at www.uscis.gov. After the medical examination is completed, the civil surgeon will provide the foreign national family member with a sealed envelope. The envelope must remain sealed when filed.
Form I-864, Affidavit of Support
There are different versions of the Affidavit of Support requirement, the use of each dependent upon the situation (I-864EZ, I-864, I-864W, I-864A). The I-864 is completed by the U.S. citizen/Lawful Permanent Resident petitioner. The purpose of the Affidavit of Support requirement is to demonstrate that the U.S. citizen/Lawful Permanent Resident petitioner will be able to provide sufficient financial support to avoid having the foreign national family member become a public charge.
Form I-864P (updated annually) provides the minimal income guidelines to satisfy the Affidavit of Support requirement. The applicable amount is dependent upon the U.S. citizen/Lawful Permanent Resident Petitioner’s household size (including the foreign national family-member). If the U.S. Citizen/Lawful Permanent Resident Petitioner does not have enough income and/or assets to meet the income requirements, a Joint Sponsor or Household Member may be used.
Form I-765 – Application for Employment Authorization
The I-765 can be filed concurrently with the adjustment of status paperwork to establish work employment eligibility while the adjustment of status paperwork is pending. Upon approval, the foreign national is issued an Employment Authorization Document (EAD), which is valid for any position with any employer, including for self-employment purposes. In most cases, the EAD is issued within 60-90 days after filing.
Form I-131 – Application for Advance Parole
The I-131 can also be filed concurrently with the adjustment of status paperwork to allow for international travel privileges while the adjustment of status application is pending. Upon approval, the foreign national is issued an Advance Parole Document, which is valid for multiple entries returning to the U.S. In most cases, the Advance Parole Document is issued within 60-90 days after filing.
Caution: If the foreign national has any unlawful presence issues or concerns, travel outside of the U.S. is ill-advised even if you have an approved Advance Parole Document. If the foreign national is unsure whether they have any unlawful presence issues, they should thoroughly discuss the matter with an immigration attorney. Please note that a failure to maintain status or being out of status is not the same as unlawful presence.
Expectations After Filing Family-Based Adjustment of Status
After all of the paperwork is filed, the foreign national will receive Receipt Notices within 2-3 week of filing for each application filed (I-130, I-485, I-765 and/or I-131). The Receipt Notices will assign the foreign national an Alien # (if they do not have one already). The Receipt Notices are also important for following up with USCIS in the future on these matters and checking the case status online.
Approximately 2-3 weeks after the Receipt Notices are generated, USCIS will schedule the foreign national for a Biometrics Appointment at a local USCIS Field Office or an Application Support Center. At that appointment, the foreign national will have their picture and fingerprints taken so that the necessary security background checks can be completed.
Request for Evidence
If USCIS determines that the information/documentation submitted is inadequate to satisfy the applications requirements and further information is needed, they will issue a Request for Evidence (RFE). The Request for Evidence will specifically state the documents/information they are seeking and a timeline under which they need to be submitted (all requested information should be submitted at the same time). Failing to respond to the RFE may result in the denial of the application(s).
EAD/Advance Parole Documents
EAD and Advance Parole Documents are usually issued within 60-90 days after filing.
In most cases, USCIS will adjudicate the petition favorably without requesting an interview. However, in some cases, they may schedule an interview. If USCIS does schedule an interview, it is normally sent to the foreign national approximately 2-3 weeks after the Biometrics Appointment. The interview notice will list documents that need to be brought to the interview.
The Family-Based Adjustment of Status Interview
Purpose of the Interview
If scheduled, the purpose of the interview is two-fold. The first purpose is to ensure that the familial relationship is legitimate. The second purpose is to ensure that the foreign national does not have any past criminal or immigration problems that would prevent them from being eligible for a green card through the adjustment of status process.
During the Interview
Each case is different and brings unique facts and circumstances to be addressed at the interview. Couples with issues may benefit from consulting with an immigration attorney who can help prepare them for what to expect at the interview and even attend the interview with them in order to assist with any responses to questions of law.
Possible Outcomes of the Interview
The interview usually concludes with one of three possibilities:
- Ideally, the officer will end the interview by letting the foreign national know that they have been approved for a green card.
- At this time, if possible, the foreign national should ask the adjudicating officer to stamp their passport as proof of their lawful permanent resident status.
Need Supervisory Review/Background Checks Not Cleared
- In some cases, the adjudicating officer might state that while everything looks good, the file needs supervisory review before approval and/or that they are still awaiting for background checks to clear.
- USCIS is likely to provide an update within 30-60 days after the interview.
- In some cases, the adjudicating officer might feel that there is an issue with the case. They will not provide a decision at that time and will follow up within 30-60 days.
Lawful Permanent Residency
If the case is approved, the foreign national will receive lawful permanent residency and receive a “green card” valid for a period of ten years. In the future, the foreign national can apply for naturalization to become a U.S. citizen if they meet certain requirements. See Naturalization. If the employment-based immigrant petition is based on an EB-5, the foreign national will receive lawful permanent residency for a period of two years and must later apply to remove the conditions on their permanent resident status.
Revised by Nisha V. Fontaine, Esq. on February 18, 2012