Adjustment of Status (Green Card)
Every day we get inquiries from potential clients who are super excited because they just married a US citizen and are wanting to “change” their status to get their “green card” and “citizenship.” It is important to know that “changing status” is not the same as “adjusting” status. Legally speaking, one “changes status” from one temporary nonimmigrant status to another” like from B2 tourist to F1 student status. “Adjusting” your status means that you are seeking to become a permanent resident of the United States.
The second thing to know is that unless you “acquire” or “derive” US citizenship from a US citizen parent, it’s impossible to skip “the green card stage” and jump straight to US citizenship. In terms of the game of Monopoly, you must first “pass Go.”
What is Adjustment of Status?
Adjustment of status means just that – “adjusting status” to permanent residency (also known as a green card). There are many ways adjust your status to that of a lawful permanent resident (green card holder), but before we explain that, it’s important to know the minimal requirements…
First, to adjust your status to become a permanent resident, you MUST have an underlying basis. The most common ways are through sponsorship by family (fiancé visa, or spouse of a US citizen) or employers (employment-based categories EB1, EB2, EB3), while other ways allow you to do it on your own. Just to name a few of self-sponsoring options:
- Are a Diplomat or high ranking official and cannot return home (Section 13)
- A lottery system for certain countries (DV lottery)
- A victim of past or future persecution (asylum)
- A victim of a qualifying crime (U visa)
- A victim of domestic violence by a US citizen or lawful permanent resident spouse (VAWA).
- A victim of human trafficking (T visa)
- Minors are not exempt – they have something called “Special Immigrant Juvenile” if you were abused, abandoned or neglected by a parent.
- Sometimes you can get it by virtue of your citizenship such as being Liberian, Cuban (through the Cuban Adjustment Act), or a national of Afghanistan or Iraq and worked for the US government as an interpreter or translator.
- An immigration judge can grant permanent residency through a process called “cancellation of removal.”
- The “million dollar green card” for investors
Second, you must be physically inside of the U.S. It is impossible to adjust your status while you are outside of the U.S. If you are outside of the US, then you will need to consular process for an immigrant visa.
Third, people assume that if they entered the United States illegally (without inspection), but are married to a US citizen, then they are eligible to adjust status. This is also untrue. Unless you qualify for a few exceptions, to adjust status through marriage to a US citizen, a person must have been “inspected and admitted” into the United States.
Example: In 2005, John walks across the border illegally and is not caught by CBP. In 2010, John marries a US citizen. He is not eligible to adjust status in the US because of his illegal entry. John cannot leave the US otherwise he will be banned for more than 10 years (he has accrued 5 years of unlawful presence which is triggered once he leaves the US). In his case, he will need to file a 601A provisional waiver which is filed in the US. John is allowed to remain in the US until it is approved. Once the 601A is approved, John MUST leave the US and interview in his native country to obtain an immigrant visa. Once his visa is approved, he will use it to enter the US and his green card will be mailed to him within 90 days.
Fourth, since you are “adjusting” your status, in many cases, you need to be “in lawful status” to begin with. Most often, this means being in a valid nonimmigrant status (such as B2 tourist status, F1 student status, H-1B, L1, etc.). One exception is if you are married to a US citizen.
Example: Andrew enters the US on a B2 tourist visa. He overstays his 6-month authorized period and begins working as a waiter earning money “under the table.” In 2020, Andrew marries the love of his life who is a US citizen. Andrew is eligible to adjust status even though he is no longer “in” B2 status because he is married to a US citizen.
Example: Juan enters the US on an F1 visa. He graduates with his bachelor’s degree in Accounting but is not selected in the H1B lottery. Five years later, he marries Sylvia, a US citizen, whom he met at a bar. Juan is eligible to adjust status even though he is “out of student status” because he is married to a US citizen.
Example: Susan enters on F1 status and graduates. She applies for OPT and receives 1 year of work authorization. However, after several years, despite going on several dating apps, she remains single. Luckily, an employer sees her talent and wants to sponsor her for the job of her dreams! Because she was on F-1 status, even though she is no longer in valid student status, she has not accrued unlawful status because as a student, she was given “duration of status” which means that as long as she does not work illegally or violate her F1 status, when her F1 status ends, she does not accrue unlawful presence. That means she can leave the US and not trigger the 3- or 10-year ban. Susan is able to depart the US, attend an immigrant visa interview abroad, and upon re-entry to the US, her green card is mailed to her!
Example: Destiny enters the US on a J1 to work as an au pair for a wonderful family. They want to sponsor her for a green card to employ her as a full-time “nanny”, but her contract is about to end in one month. Destiny continues to live in the US (even though she is no longer on J1 status) with her former J1 sponsor who loves her like a daughter. The host family sponsors her for an employment-based petition and after two years the immigrant worker petition is approved. Destiny returns to her native country, passes her immigrant visa interview, returns to the US and her green card is mailed to her. Just like F1 status, J1 status is also “duration of status” which means that as long as she did not violate the terms of her J1 status, once it ends, she does not accrue unlawful presence so she can leave the US without triggering any ban based on unlawful presence.
Many people think that having Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS), or even a pending asylum case is the same as being “in lawful status” but this is not true. Pending asylum, DACA and TPS are temporary protections that allow people to live and work in the United States. They are helpful in that they prevent you from accruing “unlawful presence” for purposes of triggering the 3-year or 10-year ban, but they are not considered “being in lawful status” for purposes of adjusting status.
Example: Jane is brought to the US illegally by her mother at the age of 4 years old. At age 16, she obtains DACA and renews it continuously. Jane then marries a US citizen. Jane is not eligible to adjust status because she entered without inspection. However, unlawful presence begins to count at age 18 and since she got DACA at age 16, Jane does not have any unlawful presence. Jane can depart the US, interview for an immigrant visa in her native country. Once she receives her immigrant visa, she can enter the US and her green card is mailed to her.
Fifth, there are dozens of qualifying criteria that must be met to adjust status. All you have to do is look at Form I-485 and you will see countless “checkboxes” which can make a person “inadmissible.”
Do I Need to Retain An Attorney To File My Adjustment of Status Application?
“I checked the green card application and instructions and it looks pretty easy. Do I need an attorney to file my application?”
We are not the type to influence potential clients one way or the other – this is a decision that should be made individually or between the couple.
Consider your “return on investment.” Is it worth it to pay an attorney who knows exactly what USCIS wants, has spent over a decade dealing with USCIS’ frustrating policies and practices, and is experienced in not only preparing an extremely thorough case, but in the event of a problem, can “think outside of the box” to address it? Or is it worth it to have frustrating days and sleepless nights dealing with the USCIS?
After more than 15 years of handling complex immigration cases, fixing mistakes made by inexperienced attorneys and pro se filers, below are some factors to consider:
- Not answering each and every question accurately can result in my filing being rejected and returned to me thereby wasting valuable time (this happened to a handful of couples who applied on their own).
- Not answering even the simplest of questions can result in USCIS alleging that you committed fraud and or misrepresentation (this happened to several couples who applied on their own and did not complete the residential and/or employment history accurately).
- Not submitting required documentation can result in a denial of your case, thereby wasting time and money; USCIS has the right to deny a case without requesting more evidence (this happened to few couples who applied on their own).
- A denied green card can result in all other options being cancelled leaving you without any lawful status (this happened to couples subject to the Adam Walsh Act who hired either inexperienced attorneys or filed on their own)’
- A denied green card application can put you into deportation
Does It “Look Bad” That I hired an Immigration Attorney to Attend My Green Card Interview?
This is a harmful misconception. Think about it this way – if someone was going to commit fraud, would they use an attorney to file the case, or, would they file the case without an attorney?
Many people do not know that USCIS “keeps track” of immigration attorneys. That is how it indicts attorneys for filing fraudulent applications. Our record with USCIS is “impeccable and flawless.” Many of the officers recognize our attorney’s name on the applications and in doing so, our clients have instant credibility.
When USCIS sees our attorney’s name listed on the forms as a “preparer,” the officer knows that our attorney has thoroughly vetted the applicant as well as the information and documentation to ensure that it is legally sound. Attorneys are bound by ethical obligations that require them to do so, but as a highly experienced practitioner, USCIS can tell that we know exactly what we are doing. Officers have even complimented our filings in front of our clients telling this “This is how it should be done!”
For those who choose to use friends or “notarios” to help them complete their applications for free, heed this warning…IF information is inaccurate, you have no one to blame especially since you signed the application(s). We have yet to see these “helpers” list their names as “preparers” on the application. That means, you have no one to blame if the information is inaccurate. Not to mention that completing applications without a law license is “unauthorized practice of law” (UPL). When our clients made a mistake on an application, at the interview, we accepted the blame by telling the officer, “It was a typo” to prevent our client from “looking bad” in the eyes of USCIS.
For every single case that USCIS has alleged fraud or misrepresentation, the applications were either filed without an attorney (most often by the applicant and sometimes with the help of family or friends who have been through the process), or, by an inexperienced and / or unethical attorney. Not a single case of ours, in the history of our law firm, was alleged to be fraudulent and that is because we present our clients’ cases with the highest standards.
Let Us Help You Turn Your Dream Into a Reality
In conclusion…now that you have a better understanding of what it means to “adjust status” and many of the different paths to becoming a permanent resident, let us help you turn your dream into a reality. Simply submit an inquiry by sending an email or through the Chat on the bottom right of this page. It’s our goal to not only make you a permanent resident of our great country, but to do so in a smooth and efficient manner. We look forward to hearing from you!
Every day we get inquiries from potential clients who are super excited because they just married a US citizen and are wanting to “change” their status to get their “green card” and “citizenship.” It is important to know that “changing status” is not the same as “adjusting” status. Legally speaking, one “changes status” from one temporary nonimmigrant status to another” like from B2 tourist to F1 student status. “Adjusting” your status means that you are seeking to become a permanent resident of the United States.
The second thing to know is that unless you “acquire” or “derive” US citizenship from a US citizen parent, it’s impossible to skip “the green card stage” and jump straight to US citizenship. In terms of the game of Monopoly, you must first “pass Go.”
