Family-Based Adjustment of Status

Petitioning for a relative to obtain legal status in the United States may be one of the most important things you ever do. But it can be a complicated process, fraught with pitfalls. Therefore, it is critical to retain good immigration counsel. We thoroughly screen petitions for any grounds of inadmissibility, extensively prepare the petition filing, and provide comprehensive interview preparation.

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 organized and persuasive supporting evidence.

Throughout the process, we prepare you and your beneficiary relative for the next step and the interviews. If the beneficiary relative is in the United States we strongly recommend our attendance at the interview. We handle all follow-up with USCIS and/or the consulate, such as requests for additional evidence.

We help you and your family to strategize the timing and appropriateness of petitioning for a green card. For instance, if the beneficiary is outside the United States, applying for an immigrant visa petition may make it more difficult for the beneficiary to travel to the United States on certain nonimmigrant visas necessitating careful planning. Or, the beneficiary relative may have an issue of inadmissibility for which a waiver, if available, must be filed. Careful screening, planning, and preparation by competent counsel will avoid most denials of petitions.

 

 
 

United States citizens (USC) 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 for whom an immigrant visa (green card or adjustment of status) is immediately available: Immediate relatives are spouses, children under 21, and parents of United States citizens.

Fiances 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 unmarried sons and daughters of USCs who are age 21 and over. The wait period is generally one year or 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 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: 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: 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. USCIS will see the marriage as potentially fraudulent. If a marriage has already taken place while the sponsored spouse is on a tourist visa, for example, it is especially important that legal counsel 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 make it difficult for a sponsored spouse to obtain permanent resident status. Legal counsel should definitely be sought before attempting to remove conditions in a divorce/separation situation.