I-485 Adjustment of Status Application - Weinstock Immigration Lawyers | Expert Advice & Representation in Immigration Law

I-485 Adjustment of Status Application:

The Form that Must be Filed in Order to Obtain a Green Card

I-485 Adjustment of Status

The I-485 application is the USCIS form that must be filed in order to obtain a green card. The I-485 form can be filed either after an immigrant visa is approved, or in some cases, concurrently with the immigrant visa.

The term “green card” is a common way of referring to Lawful Permanent Resident status in the United States. This status will permit you to stay in the U.S., work for any employer without the need for visa sponsorship, and allow you to sponsor U.S. spouses and minor children.

The two most common paths to obtain a green card are:

  • FAMILY-BASED PETITIONS – These petitions are based on a qualifying family relationship with a United States Citizen or a Lawful Permanent Resident. Qualifying family relationships can be spouses, children, parents or siblings.
  • EMPLOYMENT-BASED PETITIONS – These petitions are filed on your behalf by your employer who will sponsor you to become a Lawful Permanent Resident.

There are also other ways to obtain a green card, for example: through approved asylum applications, as victims of domestic abuse, victims of crimes or trafficking, among other options. If you believe you may qualify for a green card in these other categories, you should contact an experienced immigration attorney who can advise you appropriately about your eligibility.

Filing for adjustment of status can be very simple or very complex, as a multitude of issues must be taken into account in determining whether someone qualifies. For example, most people who crossed the border without a visa and entered without inspection are ineligible to apply for a green card in the U.S. Moreover, if the applicant has a criminal history, history of removal or deportation proceedings, has overstayed a visa, or has been out of valid immigration status, their adjustment of status application could be denied.

It is extremely important that your case is analyzed by an experienced attorney to ensure that you are eligible to apply for a green card and to review all the issues in your case that may arise in the adjudication of your application. If an application is filed and you are deemed ineligible or inadmissible resulting in a denial, you may be put into removal proceedings, i.e., deportation. If you are put into removal proceedings, it can be much more difficult, and in some cases impossible, to obtain a green card.

There are various categories of adjustment of status, depending on the underlying basis of eligibility. For those individuals whose visa number is immediately available – for instance, certain employment-based immigrant or immediate relatives of a U.S. citizen – an adjustment of status application can be filed at the same time as the underlying immigrant petition (Form I-130 or I-485).

There are specific supporting documents and USCIS forms that must be submitted with each I-485 application, and the list of document varies depending on whether you are filing based on marriage, employment, or another category. If you are eligible to file for a green card, you may also file for an employment authorization document (EAD), and in some cases, an advance parole (travel document). Once the application is filed, you can remain in the U.S. independent of another visa category, based on the pending green card application.

You will be required to attend a biometrics (fingerprint) appointment at a local USCIS Application Support Center (ASC) to verify your criminal history. Depending on the category in which you have filed, you may also be required to attend an interview at a local USCIS office. If the application was based on a family relationship, then your family member is usually required to attend this interview with you. Most employment-based applications are exempt from personal interviews.

Bars to Adjustment of Status

Foreign nationals must not be statutorily barred from adjustment, or they will not be able to adjust their status in the U.S. These Statutory Bars to adjustment include:

  • J-1 or J-2 non-immigrant status holders who are subject to the two-year residence requirement and have not satisfied this requirement and were not granted a waiver for the requirement, will be barred from adjustment.
  • Foreign nationals who entered the United States under the K-1 category for fiancés can only adjust their status to permanent residence if the adjustment is a result of their marriage to the sponsoring U.S. citizen within 90 days of their entry into the U.S. If they fail to marry the petitioning U.S. citizen, and file for adjustment on any other basis, they will be barred from adjustment.
  • Foreign nationals trying to adjust their status must prove that they will not become a public charge by supplying evidence of their or their sponsor’s financial ability to support themselves. If they cannot provide proof of support, they are barred from adjustment.
  • Foreign nationals who get married while in removal proceedings must prove that the marriage was entered into in good faith and not for the purpose of obtaining permanent residence by clear and convincing evidence. If it is determined that the marriage was not entered into in good faith, the foreign national will be barred from adjustment.
  • Foreign nationals who entered the U.S. under crew-member D Visas or transit visas are barred from adjustment.
  • Foreign nationals without a visa, who entered without inspection, are barred from adjustment of status unless some exception applies.

Even if someone is eligible for adjustment and is not barred by any of the statutory bars listed above, the USCIS officer handling each case may still deny an application with their discretionary power. Ordinarily, adjustment of status applications are approved when the alien is statutorily eligible and there are no negative factors in their case. For example, the pre-conceived intent to remain in the U.S. at the time of entry as a non-immigrant, even if this intent does not constitute fraud or willful misrepresentation, may be a sufficient negative factor to deny an adjustment of status application. If negative factors are evident, they are evaluated to determine whether adjustment will be granted. Ordinarily, negative factors are weighed against positive factors such as the existence of close family relatives and immediate relatives in the U.S.

Once your I-485 application is approved, you will be issued a Lawful Permanent Resident document (green card). If your green card was approved based on marriage to a U.S. citizen, to whom you were married for less than 2 years at the time of issuance of the green card, it will be deemed a ‘conditional’ green card and will be valid for only 2 years. At the end of the 2 years, another application, I-751, must be filed in order to remove the conditions and obtain a permanent green card. Most other categories of lawful permanent residents will obtain a permanent unconditional green card. Although this green card has an expiration date of 10 years, it is still deemed permanent and can only be revoked by an immigration judge under certain circumstances.

Although a green card is considered permanent, certain actions by the holder can lead to its invocation. For example, residing outside the U.S. for long periods of time may be considered abandonment of your permanent residency. Certain crimes can result in being placed into removal proceedings and having your permanent residency revoked by an Immigration Judge. These issues can also have an impact on your ability to file for naturalization (citizenship).

If you plan to work, travel, or study outside of the U.S. for long periods of time, or if you have been charged with a crime, an experienced immigration attorney can advise you of your rights and the best strategy to preserve your permanent resident status.

Do you need to obtain a green card for yourself, a family member or an employee? Is it important for you to get the green card approved? Call us today before you file the application: We’ll determine the best strategy for optimal results and show you how to avoid common issues that can lead to delays and denials!

WEINSTOCK IMMIGRATION LAWYERS

1827 Independence Square
Atlanta, GA 30338
info@visa-pros.com

770-913-0800

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