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Family-based Immigration, Adjustment of Status & Consular Processing

Adjustment of status is the process of becoming a permanent resident in the United States. Immigrant visa consular processing is the process of becoming a permanent resident after obtaining an immigrant visa from abroad to come to the United States. In order to determine which process to use, contact Immigrants First. Each process has its pros and cons and it is important to make the correct selection.

Criteria for Adjustment of Status and Exceptions

If a person is inside the United States, it is often, but not always, appropriate to proceed with adjustment of status if the person meets the criteria for adjustment, including having been inspected and admitted, maintained lawful status and refrained from working without permission. There are exceptions to these broad guidelines for adjustment that can be discussed in a consultation with Immigrants First, including being petitioned for by an immediate relative, for a child applying under special immigration juvenile status protection, and for a person adjusting with U, T, or asylum status, as well as under Immigration and Nationality (INA) section 245(i) for persons who were present in the United States in December 21, 2000, had an “approvable when filed petition” filed before April 30, 2001, and are otherwise admissible.

These days, it is not enough to just fill in the forms. If a relative petition, especially for a spouse, is to have a good chance at approval by USCIS or a consulate, it must include substantial amounts of organized and persuasive supporting evidence. We handle all follow-up with USCIS and/or the consulate, such as requests for additional evidence. Careful screening, planning, and preparation by competent counsel will avoid most denials of petitions. With how complicated the process has become to petition and adjust status, we encourage scheduling a consultation with Immigrants First to discuss options and the process.

Family-based Adjustment of Status, Fiancé Visa and Family-based Immigrant Visa Consular Processing

Immigrants First has successfully handled hundreds of family-based petitions that lead to adjustment of status, approved fiancé visas or approved immigrant visas through consulates abroad.

Marriage-based Adjustment

A lawful permanent resident or U.S. citizen may petition for a spouse to become a permanent resident or may file for them to obtain an immigrant visa if they are abroad. Lawful status acquired through a spouse requires that the marriage be in good faith, in other words, that at the time the marriage was entered into it was legal and for a purpose other than to obtain an immigration benefit, that there was an intention to form a life together.

A marriage that is legal in the jurisdiction where it was formed is generally recognized in the United States, unless it is against public policy such as bigamy. Same sex marriage is recognized, as are traditional and arranged marriages. Once establishing the legality of a marriage, an adjudicator will look for whether the marriage was entered into in good faith, as discussed above.

When proving a good faith marriage, especially if there have been previous USCIS denials, it is important to use an experienced family-based adjustment attorney. At Immigrants First, we have years of experience of doing marriage and fiancé adjustment cases successfully. We substantially document our filings and make considered inquiries into the couple’s relationship, so that the evidence and couple themselves are properly prepared for the process and interview. We extensively prepare our clients for the interview beforehand and attend the interview, especially in situations where there are age, culture and language gaps, where a couple has not been living together, or where there have been affairs, other discrepancies, or marriage in close proximity to an ICE arrest or being placed in removal proceedings.

If the spouse is abroad, or in some cases is required to return to his or her country, the case will proceed to consular processing after the I-130 petition for alien relative is approved. There is less review of consular processing decisions than for adjustment of status with USCIS, so even more careful preparation must be undertaken. Further, the timing of consular processing is less predictable; this is because there are wait times with both the national visa center (where the case is sent for processing after an I-130 approval with USCIS) and with the consulate in terms of scheduling an interview. Our firm helps families navigate the nuances of consular processing successfully.

Public Charge Issues

Under the Trump administration, there is much more attention paid to whether the person for whom a petition has been filed will become a public charge, or a burden to the United States government by claiming public benefits. Our firm is current on all of the most recent changes and prepared to provide guidance through the process.

Fiancé (K Visa) Petitions

Fiancé visas, which can only be filed by U.S. citizen petitioners, are similar to I-130 petitions for a spouse. One must demonstrate an intention to enter a good faith marriage. After the fiancé visa is approved by USCIS it is sent to the National Visa Center for review and then scheduling with the consulate. The beneficiary is called for an interview, and the visa is approved at the consulate. The beneficiary must come to the U.S. within six months, marry the petitioner within 90 days, and then file for adjustment of status within the United States. Our firm has successfully handled many fiancé visa petitions and helps clients determine whether a fiancé visa is the best course of action or, instead, if it is better to get married and then file an I-130 petition for alien relative.

Petition for Alien Relative for Other Family Members

U.S. citizens may file for their spouses, children, parents and siblings. Spouses, unmarried children under 21 and parents are considered immediate relatives and do not have a wait time for a visa. Married children, children over 21 and siblings of U.S. citizens are in preference categories and must wait for visas to become available. Family members of lawful permanent residents are also in preference categories and must wait for a visa to become available. Sometimes consideration must be given to the fact that, with a visa wait time, the beneficiary relative will have to leave the U.S. and go through a waiver and consular process because of the unlawful presence accrued while waiting for a visa to become available.

Complicating Issues and Waivers

Adjustment of status generally requires a lot of conditions to be in place in order to be successful. For those cases where there is unlawful presence, criminal issues, public charge, health, fraud, smuggling or other inadmissibilities, waivers and/or consular processing may become necessary. Our firm is experienced in handling complex adjustment cases and addressing any inadmissibility for which relief is available.

Other Bases of Adjustment of Status

One can adjust their status, even with otherwise unwaivable inadmissibiliites for family or work-based adjustment, if they are adjusting through asylum, special immigrant juvenile status, U and T visas, Violence Against Women Act Claims and other circumstances.

Assistance with Adjustment of Status, Consular Processing and Family-based Immigration

To speak with Immigrants First about adjustment of status and other immigration options, contact us for a consultation.

Relative Immigration and Preference Categories

United States citizens (USCs) and lawful permanent residents may petition for certain relatives to become permanent residents (“green card holders”). Some classes of relatives are able to adjust their status to lawful permanent residency immediately, meaning that there is no wait for an immigrant visa. Other classes of relatives are grouped into preference categories that determine how long they will have to wait for an immigrant visa after filing an I-130 petition for alien relative, which initiates the process. These preference categories and the length of wait are set forth in the State Department Visa Bulletin that is updated monthly and is available on the State Department website.

Immediate Relatives

Immediate relatives for whom an immigrant visa (green card or adjustment of status) is immediately available: Spouses, children under 21 and parents of USCs.

Fiancés of USCs Living Abroad

Fiancés of USCs living abroad may be sponsored and enter the United States on a K-1 visa petition and children of the foreign national fiancé may enter on a K-2 visa.

First Preference Category

The First Preference Category: unmarried sons and daughters of USCs who are age 21 and over. The wait period is generally one year or much more, depending upon the country of citizenship of the son or daughter. If someone in this category marries before becoming a green card holder, his or her preference category automatically converts to the Third Preference, necessitating a much longer wait for an immigrant visa.

Second Preference Category

The Second Preference Category: spouses and unmarried sons and daughters of lawful permanent residents. Spouses and children under 21 are classed as second preference category “A” and sons and daughters age 21 and over constitute subcategory “B.” If the sponsor becomes a USC during the petitioning process, spouses and children under 21 automatically become immediate relatives (for whom an immigrant visa is immediately available), and first preference category for sons and daughters over 21 on the sponsor’s date of naturalization. Please note that first preference may, at times, be a longer wait than second preference. Married sons and daughters of lawful permanent residents are not eligible beneficiaries.

Third Preference Category

The Third Preference Category: married sons and daughters of USCs. This preference category entails the longest wait and families may want to explore other options for immigrating, if available.

Fourth Preference Category

The Fourth Preference Category: brothers and sisters of adult USCs.

Notes of Caution

Do not get married for a green card! It is fraudulent and criminal and bars certain immigration relief for the beneficiary of the petition in the future. In many cases USCIS will find out and the beneficiary, if in the United States, will be placed in removal proceedings.

Be cautious about getting married to a USC or permanent resident in the United States while on a tourist or other nonimmigrant visa. Serious issues of visa fraud may be examined by USCIS during the process. If a marriage has already taken place while the sponsored spouse is on a tourist visa, for example, legal counsel should be obtained.

Be aware that if a United States citizen or permanent resident marries someone during their removal proceedings (after a Notice to Appear has been issued — even if there has not yet been a court date), the couple must prove at an elevated standard, by clear and convincing evidence, that the marriage is in good faith (not a sham to avoid deportation). Legal counsel is essential in a petition where the marriage took place during removal proceedings.

Note that if a sponsored spouse receives a green card during the first two years of marriage, that person is granted only conditional residency. Two years after conditional residency is granted, the couple must jointly petition to remove conditions. Divorce or separation during the two-year conditional residency period can create problems for a sponsored spouse to achieve permanent residence status. Legal counsel should definitely be sought before attempting to remove conditions in a divorce/separation situation.

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