ADJUSTMENT OF STATUS – SUMMARY
“Adjustment of status” is the process of becoming a legal resident of the United States while already in the United States.
Adjustment of status is appropriate for qualifying immigrant family members who are already in the United States and are willing to stay in the United States until a temporary travel document is issued as part of the pending adjustment of status case. In most cases, once an adjustment of status case is filed, the immigrant may not be able to travel outside of the United States with a visa previously obtained (most visas are not “dual intent” and do not permit the holder to have the intent to stay in the United States). USCIS will consider leaving the United States without the temporary travel document (called an “advance parole” document) or a valid “dual intent” visa abandonment of the case, resulting in denial.
Adjustment of status is generally appropriate for individuals who entered the United States after inspection by an immigration officer or who are 245i eligible. Individuals who last entered the United States with specific visas do not qualify to file for adjustment of status.
ADJUSTMENT OF STATUS – OTHER COSTS
There are additional government fees and miscellaneous fees for which you are responsible. For the typical one-step adjustment of status cases, the government filing fees are $1,760. Note: this price might be slightly lower for certain individuals based on age and may be lower if a Form I-130 petition is not required or has already been filed and/or approved.
Applicants for adjustment of status will also need to complete a medical examination (approx. $300-$500) [which we generally recommend completing just prior to the interview date]. Translation and interpretation services may be required, however, professional translation services are optional, and non professionals are permitted to translate/ interpret. For cases where it is necessary to prove parentage, a DNA test may be required (approx. $300).
ADJUSTMENT OF STATUS – FAQs
What is the 90 day rule and why should I care?
Can I travel with my current visa after filing my adjustment of status case?
Does your firm handle LGBT cases?
How long does the process take after my case is submitted to USCIS?
What is the adjustment of status marriage-fraud interview like, and do we need to bring more proof of the marriage relationship to the interview?
How do I change my last name to the name of my spouse?
Do the services continue after the interview?
Do I have to pay for professional translation services or an interpreter?
Will I get a two year or ten year green card?
We handle these cases all the time without issue. However, in cases where the immigrant has some criminal history, or ICE is intent on deporting him or her, perhaps because they believe he or she is a drug trafficker, etc. – ICE has the legal authority to stop the adjustment proceedings and remove the immigrant for any reason.
Individuals who enter the United States without a visa pursuant to the ESTA application program (i.e., visa waiver program) are subject to special administrative removal procedures if they overstay. There are so few safeguards available to such individuals, that the adjustment of status case can be stopped entirely if the individual is administratively removed. The individual can be held without bond and removed without seeing a judge.
In our experience, these types of removals are rare. However, the mere possibility of such a drastic event taking place is even more reason for clients who entered through ESTA or the visa waiver program to not delay in the filing of their adjustment of status case. In fact, some attorneys take the ultra conservative approach that all cases should be filed within the 90 day period of authorized stay despite the “90 day rule” regarding visa fraud and immigrant intent (discussed below).
Assuming you entered the US with the correct type of visa, this is not a problem for “immediate relatives” as defined by law (including spouses of us citizens) who have overstayed their last entry to the United States. Please note, however, that prior periods of overstay (i.e., before the last entry to the United States) could cause the immigrant to be inadmissible, preventing him or her from adjusting status. Also, if the case fails – if for example – you get a divorce halfway through the process – and you leave the country, you could trigger a penalty (3 year bar or 10 year bar) if you have 180 days or more of unlawful presence or one year or more of unlawful presence in the aggregate. Filing your adjustment of status case stops the accrual of unlawful presence.
So what if you are not in the United States, but want to file for adjustment of status to avoid the long delays of consular processing?
Unless you already have a “dual intent” visa – which is rare, this may be difficult. It is generally not advisable to enter the United States with your mind made up that you will apply for adjustment of status. The reason is that upon arrival to the United States, the Custom and Boarder Protection (“CBP”) agent will ask what the purpose of your trip is. If you tell the officer that your intent is to file for adjustment of status, or move in with a family member, then you easily may be denied entry and sent home on a plane – even if you have a visa. Most visas (F-1, B1-B2, ESTA (VWP), etc.) do not allow for the intent to stay in the US.
So maybe you will be tempted to lie to the immigration officer. If you are tempted to lie to the official, don’t! Fraudulent statements made at entry can be grounds to later deny an adjustment of status application. For example, let’s say you enter the US and say you are visiting a friend, but you are already engaged, and you stay in the US, get married and file for adjustment of status. USCIS may determine that calling your spouse a “friend” instead of “fiancee” at the time of entry was fraudulent. They may find this information from your Facebook page or other investigation.
Well, what if we are just thinking about getting married, but there has been no proposal, and we just want to know or options?
Keeping an open mind, entering the US with the intent to return home, but changing your mind and remaining in the United States to adjust status is perfectly acceptable for eligible “immediate relatives” of US citizens. This is common with married couples and parents of US citizens.
Keep in mind, however, that actions taken within the first 90 days of entry to the United States may be viewed with more skepticism and could result in USCIS presuming fraud (see 90 day rule below). Consider, for example, a couple who never speaks with an immigration attorney, enters the US with a visitor visa, and then immediately marries and applies for adjustment of status within a couple of weeks. Even if the immigrant did not lie to the immigration official upon entry to the United States (with is hard to imagine), USCIS may still think that the immigrant lied or presume fraud. Legally speaking, you could fight unproven accusations by USCIS, but do you want to be in a defensive position for an important legal matter?
Yes, this is generally not a problem for “immediate relatives” as defined by law (including spouses of US citizens).
However, if the work was not disclosed on a prior application for visa, renewal visa or other benefit, or if the work was started shortly after arrival, it may be evidence of misrepresentation or fraud, which can be a grounds for inadmissibility.
Generally, the answer is NO! You may be stuck in the United States for some time while your case is pending. Traveling abroad may cause your case to be denied, and cause you to be stuck outside of the United States, even if you have a visa. The only exception may be for individuals with “dual intent” visas. However, you should never leave the United States without first speaking with the immigration attorney.
In short the 90-day rule (which technically is not even an applicable law) can cause your case to be denied. Basically, USCIS will look at any action taken within 90 days of entry to the United States to see if it was consistent with the visa the immigrant entered with (e.g., B2 visas are for tourism and medical treatment only). If the action is inconsistent, USCIS may think the immigrant lied or otherwise committed marriage fraud.
Actions taken within 90 days of the last entry to the United States that can trigger scrutiny by USCIS, include but are not limited to the following:
- Unauthorized employment
- Filing for change of status or adjustment of status
- Attending school without authorization
- Marrying a US citizen and taking up residence with him or her
- Taking actions inconsistent with the immigrant’s stated purpose of travel when obtaining the visa and/ or when entering the United States through customs
For example, let’s say an immigrant enters the US with a tourist visa and starts working 30 days after arrival. Then the immigrant marries a US citizen and files for adjustment of status several years later, having worked without authorization the entire time – and well after the visa has expired. USCIS will not care that the immigrant overstayed the visa, or that the immigrant worked without authorization. However, the timing of the immigrant first working in the US (i.e., a mere 30 days after arrival) could cause USCIS to believe the immigrant lied to immigration officials when obtaining a visa. In such a case, USCIS may require a difficult to obtain waiver and the success of the case may be put at risk.
This is not a hard-and-fast rule, but something USCIS can use to deny a case, and something every client needs to be aware of. If you have concerns, speak with the immigration lawyer.
We support the rights of the LGBT community and believe that everyone should be treated with dignity and equally under the law. It took way too long for the US government to begin to recognize the rights of LGBT families, and much more is needed to be accomplished. However, since the land-breaking case of Obergefell v. Hodges, issued Friday, June 26, 2015, at least there is no question that LGBT citizens are legally guaranteed the right to marry and to petition for their spouses to obtain lawful permanent residency in any state.
We handle a large volume of family-based cases, including a large volume of LGBT family-based cases.
After the case is submitted to USCIS, you can expect the following:
- 2 days to 3 weeks to cash your check
- 3-4 weeks to receive four (4) receipt notices
- 4-5 weeks to receive a fingerprinting appointment notice. *** Note: this is very sporadic due to COVID 19. It can take much longer.
- Work authorization and travel document (advance parole) about 6+ months currently. Discuss with the attorney – this time period frequently changes.
- Time to marriage-fraud interview. Between approximately 4 months and 3 years. This is based on the Field Office with jurisdiction over the case. Again, you can discuss this with the attorney as timeframes frequently change.
- Time to receive green card post interview. In the best scenario, this takes about 1 week. It can certainly take longer for a variety of reasons, many of which are completely normal and do not reflect negatively on the case.
This is a rough timeline for cases. After handling such a large quantity of these cases, one thing we can tell you for sure is that every case is different and time to approval varies.
What is the adjustment of status marriage-fraud interview like, and do we need to bring more proof of the marriage relationship to the interview?
USCIS will want to verify information contained in the forms we provided. USCIS will also ask questions about any grounds for inadmissibility. For example, USCIS may ask if the immigrant has smoked marijuana in the US. If so, the immigrant may be permanently barred from the United States (even if the marijuana was used in Colorado or another state where it is legal).
In most all cases, the couple will be interviewed together and asked about how they met, asked about each others’ family, and asked about what they like to do together. The immigrant will also be screened for fraud at entry, i.e., asked if the immigrant lied about his or her purpose of visiting the United States, and screened for other grounds of inadmissibility (e.g., criminal, security related, immoral activity such as prostitution – again, even if legal where practiced).
Generally only in rare cases where USCIS already suspects marriage fraud, will the couple be separated and questioned individually. USCIS does this to compare the answers of each spouse.
Sometimes the USCIS officer will give an indication that the case will be approved during the interview, like when the officer says “everything looks good.” In other cases, the officer might want to look everything over one more time before committing to approval.
If approved, the couple generally will receive the card within a few weeks of interview. However, it is also common for approval to take longer for a variety of reasons that are generally not a reason for concern.
This is only a general overview of the marriage-fraud interview. It is important that you prepare for the interview with the attorney prior to attending as each case is unique and it is critical to be prepared. Interview preparation with the attorney is included in all cases.
We generally recommend that the immigrant request the USCIS officer change the last name to that of a spouse during the marriage-fraud interview. The USCIS officer has the authority to make the name change at that point. It is generally less problematic to change the name at the interview than at an earlier time because proof of any name change will be required and travel may be complicated.
USCIS does not care if you take the last name of your spouse or not. This is your personal preference.
Yes, you are encouraged to consult with the attorney post interview, and if you are given a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) at the interview or post interview, the attorney will respond on your behalf.
All documents submitted to us must be provided in the original language, with an English translation, and a certificate of translation. You do not need to pay for the professional translation of your documents, however, the translator should not be a family member. We will provide you with a template certificate of translation.
USCIS will NOT provide you with an interpreter during the interview. You can bring a professional or a non-professional as your interpreter. It is very important, if you are not highly fluent in English, that you bring a competent interpreter to the interview with you. The interpreter should not be a family member.
If your marriage is less than two years old when the case is approved, you will be given a two year card instead of a ten year card and will be required to file a Form I -751 to remove conditions on your permanent resident status during the 90 day window prior to the expiration of the card. The Form I-751 is filed jointly with your spouse if still together, and can be filed by the immigrant alone if there has been a divorce/ death of the US citizen spouse, abuse in the relationship or if there would be hardship caused by the removal of the immigrant from the United States.