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Adjustment Of Status Through Petition Of U.S. Citizen Spouse
Process Overview The AOS process begins with the concurrent filing with the Department of Homeland Security (DHS) of a "Petition for Alien Relative" by the US Citizen spouse and an "Application to Register Permanent Residence or Adjust Status" by the foreign-born spouse. Although the two filings will be adjudicated together, they are considered two separate proceedings achieving two separate ends. The alien relative petition establishes that the petitioner is a U.S. citizen, that the petitioner and the beneficiary spouse are lawfully married, and that the marriage was entered into in good faith and not for the purpose of securing an immigration benefit. The adjustment application establishes the identity of the foreign-born spouse, that no medical issues or past criminal conduct bar immigration, and provides sufficient information to conduct background checks. Keep in mind that the immigration laws require that the couple establish that the marriage was entered into in good faith. This is usually demonstrated by evidence of continued cohabitation throughout both the marriage and the adjustment process. Although a commuter marriage, with one spouse traveling during the week, will not necessarily bar an adjustment, it is very important in these cases to develop substantial evidence that the spouses are together during weekends, holidays, and vacations. Note also that, upon grant of the adjustment, the foreign-born spouse will be a conditional permanent resident for two years. Within 90 days before the two years is up, the spouses must jointly file a petition to remove the conditions. The petitioning spouses must be able to demonstrate the continuation of the marriage in good faith throughout the two years in order to secure removal of the condition. A waiver may be possible in the case of death of the US spouse, evidence of physical abuse to the foreign spouse, or, in some cases, divorce. Waiver in the case of divorce requires a showing of "extreme hardship," a standard which should not be taken lightly. During the preparation of the application filings, we will ask both spouses to provide biographical information and documents. Required documents may include copies of passports, birth certificates, marriage certificates, divorce decrees, financial documents, and US tax returns, among others. It will also be necessary for the foreign spouse to submit the results of a medical examination conducted by a physician enrolled by DHS as a "Civil Surgeon" authorized to administer immigration physicals. DHS maintains a Civil Surgeon Locator at its website: DHS processing procedures change with some frequency, but in all cases there are three steps: (1) filing of the application package; (2) collection of biometrics (fingerprinting); and (3) an interview of both spouses in a DHS District Office. After the application is filed and accepted, DHS will send receipt notices assigning a file number to the different elements of the proceeding. Both counsel and spouses are usually sent copies. It may take a month or more before the receipt notices arrive. Some time later, the foreign-born spouse will receive a notice for fingerprinting at a DHS office. It is very important to complete fingerprinting before the deadline in the notice. The process also involves an FBI name and fingerprint check based on information submitted, which DHS performs automatically. This can frequently be cause for delay, unfortunately. Moreover, processing times vary widely among DHS offices – a proceeding which takes six month in one city may take more than a year in others. Unfortunately, the determination of the adjudicating office is a strict function of where the petitioner lives. It may be several months before DHS conducts a substantive review of the filings. This review may result in a request for additional evidence to support or clarify a point of concern. DHS is required to direct these requests to the attorney representing the spouses, but mailing errors do occur. If you receive such a request in the mail, please bring it to our attention. If there are no requests for evidence, or upon their resolution, and after initial security checks are submitted, the local DHS office will schedule an interview which both spouses must attend. It is highly advisable to work to the DHS schedule. Rescheduling an interview can create significant delays. Before the interview, we will go over the facts of your case, obtain updated documents if necessary, go over the subjects likely to arise, review the documents and evidence you should bring to the interview, and schedule a time and place to meet before hand. The interview itself may last only a few minutes. Your attorney will be in the meeting, but will likely participate only if required to ensure that the hearing officer remains on the right track, to argue points of law or fact, and to put on the record concerns with regard to the officer's procedures or conclusions. In most cases, the officer will state at the end of the interview what his recommendation on the case will be. Although the officer may be able to grant the application at the interview, this has become a less common practice. After the interview, and on completion of all FBI checks, the District Office will notify the applicant of a decision by letter. Upon grant, the foreign spouse will need to schedule an appointment with the District Office to receive an "ADIT" passport stamp that serves as evidence of permanent resident status, right to work and can be used to gain readmission into the US upon return from trips abroad lasting less than one year. Depending on the backlog, a form I-551 Permanent Resident Identification Card ("Green Card") will be mailed to the foreign-born spouse a few weeks or months later. Let us know if it is inordinately delayed.
Employment Authorization Given that the process can be time consuming, the law permits the foreign-born spouse to obtain an Employment Authorization Document (EAD) and to secure travel documents permitting foreign travel and return without disrupting the adjustment proceeding (Advance Parole). Both are valuable benefits which must be used with care, and both require application and grant before the benefit can take effect. In many cases, EAD and Advance Parole applications are routinely filed with the adjustment application package, and are granted within a few months, often faster. Advance Parole is inadvisable in cases where there has been a visa overstay, since travel abroad may trigger a three or ten year bar to US admission. The law requires that the foreign spouse have received an EAD grant before accepting employment. To avoid undue hardship, if 90 days has passed since applying, the EAD applicant may obtain a temporary EAD by appearing in person at a DHS District Office. This may require scheduling an appointment, which may only be available two or more weeks in advance. (If the 90 th day without grant is approaching, it may be preferable to schedule an appointment and not use it than to lose the employment time.) The EAD is granted for one year, and continued employment requires that the EAD be kept current. Given the temporary EAD policy, it is best to apply for a renewal 90 days before expiration so that a temporary card will be available should there be processing delays.
Advance Parole The Advance Parole is a valuable tool, particularly where an applicant travels frequently on business, but they can be tricky to use in practice. First, it is critically important to remember that DHS rules deem an AOS proceeding to be abandoned if the applicant departs the US to any foreign destination without having a granted and current advance parole in hand. (The intent is to prevent an applicant from maintaining an AOS proceeding while seeking consular immigrant processing at the same time, among other reasons.) Moreover, the AOS applicant must leave and return on the same parole document. Under current DHS policy, the applicant may not leave on one valid parole and then return on a second, renewed parole, even if out of the country for only a few days. If an Advance Parole is about to expire, a renewal application still pending, and travel abroad is urgent, a parole renewal may be available by applying in person at a District Office. Note also that, on return, the foreign-spouse will be in parole status, which does not provide some of the legal rights available to persons in nonimmigrant status. Although not a major concern in most cases, let us know if you have questions on this point.
Affidavit of Support The immigration laws also require that the US Citizen spouse execute an affidavit of support that commits to reimbursing federal, state, and local governments for the cost of any public assistance benefits that the foreign spouse might receive during the first ten years after grant of permanent resident status. It is a binding contract that applies whether or not the marriage is maintained through the full ten years. The affidavit requires demonstration that the US spouse's household income is, in most cases, at least 125% of the federal poverty income guidelines, which change annually.. A US spouse whose income does not meet this threshold may include the income of others in the household, in some cases including the income of the foreign spouse. If household income is still insufficient, the spouse may qualify on the basis of property owned or with the participation of a joint sponsor.
Preserving Permanent Residence Finally, keep in mind that Permanent Resident status is not necessarily permanent. In addition to conviction of certain crimes, it can be lost by engaging in conduct inconsistent with an intent to reside permanently in the US. This may include purchasing a primary residence abroad, taking a job abroad without a predetermined end date, or traveling outside the US for more than a year without first obtaining a re-entry permit, among others. There is not bright line test and you will receive no letter from DHS. Often, the Permanent Resident does not discover there is a problem until refused entry at an airport inspection. If, after adjusting, you are expecting to travel abroad frequently or for extended periods, please let us know so that we can discuss measures you can take to help avoid losing Permanent Resident status and to minimize the time required to qualify for citizenship by naturalization. Please let us know if you have any questions and we look forward to working with you.
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Home :: About Us :: Site Map :: Contact Us :: Legal Notice Corporate Services :: Individual Services :: Immigration Policy Law Office of Charles A. Tievsky, PLC 1875 Campus Commons Dr., Suite 201 , Reston, Virginia 20191 USA Ph.+1 703 716 0022 , Fax: +1 703 935 6088
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