Adjustment of Status
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Adjustment of Status by Tucson Arizona Immigration Attorney Lawyer John Messing
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In General

Adjustment of status occurs when a person who has been in a lawful status applies for and is granted permanent residency while physically present inside the US. It takes place without the applicant having to depart the United States.

Adjustment of status for family members commences by a US citizen or permanent resident filing a petition for alien relative (form I-130). It can also be started by an employer filing a petition for alien worker (I-140), provided the labor department certifies that the job will not take a position from a qualified U.S. worker, after a labor market process called PERM or an exemption applies to the position in the national interest or to the applicant because of pre-eminence in a field, in which case the applicant may be able to self-file, without an employer. Employment based adjustment of status often is sought by applicants while already working in the U.S. on an L, H-1B visa, or other dual intent visa. Refugees, asylees, victims of violence against certain family members (VAWA), and U and T visa grantees have special rules for adjustment of status.

The adjustment of status petition (form I-485), supporting documents and related applications, often are filed together in a single packet with the form I-130 (families) or I-140 (employers), which helps improve processing times as a general rule. Employment based cases may be eligible for premium processing.

Adjustment of status can only be granted when a visa is immediately available to the applicant under the visa preference system, see the State Department's Visa Bulletin for monthly updates of visa processing times, Alternatively, in family based cases when the applicant is an immediate relative of a U.S. citizen such as spouse, parent of an adult U.S. citizen, or parent, step-parent or adoptive parent of a minor under 21 years of age, a visa is always available without regard to the preference system.

Certain minors qualify immediately for U.S. citizenship upon adjustment of status.

Bona fide marriage

In family adjustment cases based marriage, the petititioner and beneficiary must establish that the marriage is viable and not for the purpose of getting a green card.

Typically this is done through documentation of common bills, children in common, joint obligations, joint assets, and joint bank accounts directed to the couple at the same residence address. Where there is doubt of the bona fides of a marriage, a home visit may be arranged for inspection of the living arrangements of the couple. At the time of the interview, photographs of the various stages of the relationship corroborating its history and evolution are typically requested and reviewed. These two sources of proof are important to the adjustment of status ajudicators.

Inspection

Entry Without Inspection, sometimes referred to as EWI, means coming into the country without inspection by the authorities; i.e., slipping in unnoticed.

An adjustment applicant must have been "inspected and admitted or paroled" into the United States. This precludes adjustment of status for anyone who entered without inspection.

Except for immediate relatives of US citizens, lawful status must also have been continuously maintained,

EWI dooms many different types of petitions, although in cases of extreme family hardship; i.e., a real tragedy such an aging parent who is bed-ridden and needs constant care, a waiver for a qualified family relative may be available. EWI does not include people who were waved through a check- point erroneously, like a sleeping child in a car backseat. Such persons are considered to have been lawfully admitted to the United States. Extreme hardship must be proven by evidence, which often includes a professional medical or psychological opinion about the consequences of removal (deportation) to a qualifying family member..

Section 245(i) Amnesty. Clinton-era Amnesty Laws enabled people who were EWI to pay a fine in order to adjust status. The latest date an application could have been filed was April 30, 2001. If a petition was timely filed under that law, even though the application was never processed to conclusion, a subsequent petition based on a more recent marriage or job in qualified situations can take advantage of the former filing date even though filed after April 30, 2001; i.e., as though the new application was filed on the date of the first one. The first application had to have some factual basis as approvable at the time it was received for filing and could not have itself been fraudulent, but otherwise the clock is reset back to before April 30, 2001. Other requirements apply, which we can discuss in a free telephonic preliminary evaluation,

Call Messing Law Offices, 520-512-5432 for a free telephonic preliminary evaluation or to schedule an initial consultation.

Unauthorized Employment, Unlawful Status or Failure to Maintain Status

Unauthorized employment or loss of lawful status precludes adjustment of status, except for qualified immediate relatives of United States citizens or certain special immigrants. Once the adjustment petition is filed, the applicant is deemed to be in a "period of stay authorized by the Attorney General" but Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP) may still subject pending adjustment applicants without other lawful status to detention and removal proceedings while awaiting the results of the adjustment proceedings. An unpublished U.S. District Court memorandum opinion on legal status and adjustment of status that issued in December 2009 upheld the lawfulness of such detention.

If you are concerned about whether you are in status, or whether a family member or business associate may be in status and the impact on his, her or their ability to adjust status or remain in the US pending processing of the adjustment petition, please feel free to contact Messing Law Offices, (520) 512-5432, for a free telephonic preliminary evaluation or to schedule an initial consultation.

Criminal, immigration impediments

Certain types of criminal convictions can disqualify an applicant for adjustment of status. Criminal immigration law does not always follow the distinction between felonies and misdemeanors of criminal law, so it is best to consult a qualified immigration attorney about prior convictions. Diversion and expungement do not always work to prevent or erase a criminal history for immigration purposes, and in some cases, simply admitting to a crime is tantamount to guilt for immigration purposes, so applicants with troubled pasts should be very cautious about applying for adjustment of status.

Affidavit of Support

Proof of an ability to support the applicant is also important. In most family based petitions and where a family member has 5% or more of ownership control in an employment setting, an affidavit of support must also be filed which promises repayment to the Government of specific types of welfare entitlements until citizenship is attained or 40 quarters of social security wages has been earned by the adjustment applicant.

The Affidavit also promises to maintain the beneficiary's standard of living at a level equal to or better than the Federal Poverty Guidelines.

Read more about affidavits of support . . .

Try the Affidavit of Support Calculator™ to see if a sponsor qualifies.

Tucson Arizona Family Based Affidavit of Support Attorney: Messing Law Offices.

Conditional Permanent Residency

Permanent residency based on marriage to a United States citizen for less than two years at the time of filing for adjustment of status is conditional permanent residency. (Investment in the EB-5 category also results in conditional permanent residency.) In family based adjustment of status, no later than two years from the anniversary of the grant of permanent residency as shown on the permanent resident card, the conditional permanent resident must file a form I-751 to remove the conditions. The form I-751 must be filed no earlier than 90 days prior to the expiration date of the card. A late filing will not be accepted unless there is a suitable explanation showing good cause for the late filing. A failure to file timely causes permanent residency and all of its benefits to lapse and renders the former permanent resident without status and subject to removal (deportation). The principal purpose of the I-751 is to satisfy the immigration authorities that the marriage was bona-fide and not entered into solely as a sham for immigration benefits. There is an expectation that the parties will still be married at the conclusion of the two year period. However, in the event of divorce before the expiration of the two year period, a waiver may be filed using the form I-751. Parties who are separated or in the process of divorce which is not final by the time that an I-751 is due are not eligible to have the conditions on permanent residency removed and are thus deportable. However, successive I-751's are permissible so long as late filing is justifiable for "good cause" and waivers can be filed for and obtained right up to a final removal order.

Except for conditional permanent residency, adjustment of status ordinarily leads to a ten year green card for the beneficiary, which is renewable, whether the card was obtained through marriage, employment, investment, refugee or asylee status, or otherwise.

If you want to discuss filing to remove conditions on permanent residency, or are contemplating divorce or legal separation as a conditional permanent resident, contact Messing Law Offices (520) 512-5432 for a free brief telephonic evaluation or to schedule an initial consultation.

Naturalization

Five years from the date of the grant of most types of permanent residency, or three years from the date for permanent residency based on marriage to a US citizen spouse, naturalization may be sought. Naturalization triggers an in-depth analysis of entitlement to citizenship and any defects in the process that led to permanent residency or any criminal troubles since the initial grant of permanent residency or even earlier will often be discovered by the authorities for the first time.

If you want to discuss filing for naturalization, or are having difficulties with a filed naturalization petition, contact Messing Law Offices for a free brief telephonic evaluation or to schedule an initial consultation.

Defense to Removal in Immigration Court

Removal is a legal process to expel a citizen or native of a foreign country from the United States. Formerly it was called exclusion or deportation; the applicable term depended on very technical distinctions. Deportation is the term most commonly associated with such a procedure by non-lawyers. It involves the taking of evidence, examination and cross-examination of witnesses, application of rules of procedure and evidence, legal briefs, and appeal of decisions. Being in removal definitely requires a lawyer's services.

Removal proceedings take place in an administrative law tribunal of the United States Department of Justice, called the Executive Office for Immigration Review (EOIR). EOIR courts are immigration courts. They exist throughout the country and each has one or more Immigration Judges that hear and decide cases.

Adjustment of status can be raised as a defense to removal (deportation) in Immigration Court If a person in removal can obtain adjustment of status, then the removal proceedings can be terminated. Marriage to a US citizen while in removal proceedings creates a presumption that the marriage was entered into for impermissible reasons related to defending against removal, rather than for bona fide romantic or family goals. The marriage must be proven to have been bona fide by "clear and convincing evidence". Marriage to a US citizen before the commencement of removal proceedings does not carry this penalty, because the marriage was concluded before removal was begun, for reasons that presumably had nothing to do with removal.

Persons may be eligible for adjustment of status as a defense against removal include the following categories. If you or someone close to you and is in removal, consider this list to see if adjustment of status might be helpful to them. If so, please contact Messing Law Offices (520) 512-5432 for a brief telephonic evaulation or to schedule an initial consultation.

The legal representative of a minor child of a US citizen parent, who is in removal;

A person in removal;

The spouse of a US citizen;

A parent of an adult US citizen;

A potential employee having an actual job offer and the employer has already agreed to petition for your permanent residency through the job.

Before an immigration judge can grant adjustment of status in removal proceedings, a petition from a qualifying relative or company officer must already have been submitted and approved administratively by USCIS; the immigration judges have no authority to grant or deny petitions from qualifying relatives and company officers on behalf of intending immigrants. In addition, the attorney for the respondent in the removal proceeding must timely prepare and submit a complete copy of an adjustment petition to the USCIS Service Center in Mesquite, Texas, without the attachments or other forms, along with the fee or fee waiver, a copy of Side B of special instructions regarding the USCIS filing, a copy of the attorney's notice of appearance before the EOIR in the removal case, and a copy of the next hearing notice from the Court. Upon proper filing, USCIS issues a receipt and returns it to the attorney for filing in Court as proof of filing and payment. The attorney also files the original of the adjustment application bearing the manual signatures, along with other forms for adjustment of status and supporting documents with the immigration court and sends a copy to the ICE trial attorney handling the case. The trial attorney has discretion to close the case administratively where the petition for adjustment seems approvable on its face, which terminates the removal proceedings and transfers the case from ICE to USCIS to investigate further and finalize permanent residency. If the trial attorney does not move to close the case administratively, then the case concludes after hearing by a judicial adjudication in the Immigration Court that is final absent rehearing, reconsideration, reopening or successful appeal. If the immigration judge grants the permanent residency, a green card must be requested and obtained from USCIS. If the judge denies the permanent residency adjustment application, then deportation may result, subject to the aforesaid possible post-hearing proceedings. Any mistakes in following the applicable procedures can severely hamper or delay a successful defense of an immigration removal case based upon adjustment of status.

Alternative to Consular Processing

Intending immigrants who are outside the United States, or will be leaving the United States, do not adjust status as a general rule but instead follow consular processing. It differs from adjustment of status in that a U.S. embassy or consulate official finally decides to grant or deny the application rather than a USCIS case officer. The embassies and consulates are located in foreign countries and operate under the Department of State, unlike USCIS which is located inside the Department of Homeland Security, so the forms used and procedures for consular processing are somewhat different from adjustment of status but the information provided is similar. Unlike adjustment of status interviews, attorneys for intending immigrants are rarely allowed into the consulate facility or permitted to argue matters in person to the consular officials. Email is the embassies' usual preferred means of communication with attorneys.

Consular processing costs somewhat less than adjustment of status. Petitions are routed through the National Visa Center, which is a branch of the State Department located inside the United States. The idea is for the National Visa Center to collect processing fees before a petition is sent to the consulates and embassies, and to forward the cases on for appointment setting and decision. At the consulates and embassies worldwise, processing procedures and practices vary considerably. Processing times are generally longer (in 2010) for consular processing than for adjustment of status, and in many cases, the required period for consular processing from start to finish can be very hard to predict.

Tucson Immigration Lawyer AZ Attorney

At Messing Law Offices, we provide high quality legal services and expertise to families, working men and women, and businesses. If you have a concern in the areas of family based immigration, business based immigration, employment based immigration, or naturalization and you are seeking the help of an experienced immigration lawyer, call Messing Law Offices (520) 512-5432 for professional Arizona immigration attorney assistance.