Adjustment of Status

Adjustment of Status is a process by which an alien that is already in the United States Changes his status from that of a non immigrant status to an Immigrant status. Not every non immigrant that are present in the United States can adjust their status. Certain requirements must be met in order to be able to adjust status. A non immigrant alien who is out of status or who has worked without authorization may not adjust his status within the United States, except in the case of immediate relatives of United States Citizens.

The Adjustment of Status Interview

In the family based immigration area, the application is followed up by interview in the local district office of the petitioner and the beneficiary. The purpose of that interview is twofold: the examining officer wants to determine that a valid familiar relationship exists and to determine that the alien is not inadmissible

How is admissibility determined in the adjustment of status process?

In the form used for applying for adjustment of status, there are a series of admissibility questions that are asked. Another way that is used to determine admissibility is the finger printing process. Before any benefit is given through the Department of Homeland Security, an individual has to be finger printed. They also take biometric information – finger prints, pictures. The finger prints are sent to the FBI for clearance. The FBI in turns sends a rap sheet that contains any criminal convictions or the records of the alien including those things that have been expunged, taken under advisement, deferred sentencing, etc

After the Adjustment of Status Interview

If after the interview, the DHS officer is satisfied that there is a qualifying relationship and if the alien is admissible, they would approve the application and the individual will be processed for the issuance of a green card which will be delivered to them in the mail in the address on file. It is always very important to make sure that the address on file is correct because the post office does not forward DHS mails.

The Stokes Interview and Investigations

If the interviewing officer has any suspicions that the relationship is not a bona fide relationship they can withhold a determination on the application to a later date. They will usually schedule the parties for a secondary interview. During the secondary interview, they would usually separate the husband and wife and ask them personal, grueling, and intrusive questions. This secondary interview is known as Stokes interview.

DHS could also embark on an investigation to make sure that there is in fact a qualifying relationship. This typically happens in spousal petitions and if there is a doubt, the adjudicating officer will send the matter to investigations who will send out field officers to the individual’s house and pay an unexpected visit to the individual and enter the house to make sure that the individuals are living together and that they are spouses.

They will look at things such as “his and her “clothing in the closet and items that are of personal nature in the house. If the individuals are not living together, they will deny the petition and place the immigrant in removal proceeding and the U.S. citizen or LPR is subject to certain civil fines, sanctions and punishment for entering into a fraudulent marriage.

If an individual is placed on removal proceeding based on marriage fraud and is ordered removed under a claim of marriage fraud, that individual is ineligible to ever come into the United States under an immigrant visa.

Categories of Relatives

In the overall scheme of relatives, the relatives and the beneficiary immigrant are broken down and placed into categories. Some of the categories have numeric limits and some don’t.

Categories without numeric limits

One of the categories that do not have a numeric limit is immediate relatives of United States citizens only. Another category without numeric limits is special immigrants.

Immediate Relatives

Immediate relatives are spouses of U.S Citizens, parents of U.S. citizens, certain widows and widowers, children of U.S. Citizens (when we say children, children are under the age of 21. Sons and Daughters are over the age of 21 and are not considered immediate relatives).

Special Immigrants

Also included in the category without numeric limitations are special immigrants. This includes religious workers, returning permanent residents, certain foreign citizens and certain dependents of juvenile court.

Categories with Numeric Limits

These categories have numerical limits and they also typically have waiting periods. In the category with numerical limits and waiting periods, all that an individual can do is file the I-130 petition for alien relative. When the petition is filed, a receipt notice is issued with a receipt date. That receipt date is known as the priority date. That date is critical to know at what time that the beneficiary can apply for adjustment of status.

There are four preferences in this category:

1. Unmarried sons and daughters of United States citizens;
2. Spouses and unmarried sons and daughters of lawful permanent residents;
3. Married sons and daughters of United States citizens; and
4. Brothers and sisters of United States Citizens

No one outside of this scheme is considered a close family relative. No one else outside this scheme is entitled to petition for an immigrant. That means that your cousin cannot do it, your uncle cannot do it, your cousin’s uncle cannot do it.