Adjustment of Status and Registry

Can I get my green card without leaving the United States?

It depends on your circumstances. If you are eligible to file Form I-485, Application to Register Permanent Residence or Adjust Status, you are lucky to not have to leave the United States when filing for your residency. This will depend on numerous factors, such as the type of immigrant visa that was filed for you, when it was filed, your method of entry to the U.S., and a detailed look at whether or not you have any inadmissibilities that will make you ineligible to adjust status.

It is absolutely important that you have a licensed attorney review your case before you file any paperwork. Do not rely on unlicensed preparers that are willing to lie to the government on your behalf, because they may also be lying to you. Ultimately, you may be the one suffering the consequences for an inadequately reviewed or improperly filed application. The attorneys at Potra Law Firm are here to give you friendly, experienced advice and help guide you through what may otherwise be a complicated and unmanageable task for many.

What is Adjustment of Status?

Adjustment of Status refers to the process of obtaining lawful permanent residence—or “applying for a Green Card”—using Form I-485. It is only available to immigrants physically present in the United States at the time of filing, who are otherwise eligible for permanent residence. Because the requirements for adjustment of status can vary greatly depending on the immigrant category you are applying for, it is best to consult with an attorney before filing your paperwork.

The general eligibility requirements are as follows:

• You have a petitioner who can file an immediately available petition, or you have an already approved and current immigrant visa petition (usually Form I-130);
• You last entered the United States with inspection, and were admitted or paroled;
• Your petitioner meets the requisite current income level to sponsor you and any follow-to-join derivatives, if any;
• You do not have any inadmissibilities that would bar you, or stop you from adjusting status—or you are eligible to file a waiver that would forgive your inadmissibility; and
• You warrant the favorable exercise of discretion.

Remember, the immigrant visa category that you fall under, as well as all the facts and details of your personal case, will determine whether you are eligible to file for adjustment of status. Every detail has the potential to become something larger or more serious in the eyes of immigration.  Because a denial of your application may result in referral to an immigration court, it is important that you are informed before filing anything. Call Potra Law Firm today to have an attorney assess your case with expert eyes and attention to detail.

Can my spouse and/or minor child adjust status with me?

Maybe! It depends on the family-based category of your immigrant visa. If you are the “principal” or main beneficiary of a petition, your spouse and minor child can only qualify as “derivatives” if your immigrant visa falls under one of the preference category petitions. This means that although “immediate relatives” (spouses, minor unmarried children, and parents of U.S. Citizens) are given many additional benefits, having “follow-to-join” derivatives is not one of them.

Another way to think about it is that if you had to wait some time before your priority date became current in order to use the immigrant visa—whether it is a couple of years or 20 years—then your spouse and minor children may be able to derive permanent resident status from your petition, as long as you do first. If, however, the immigrant visa was available to you as soon as USCIS approved the I-130 petition, then your petitioner needs to file separate I-130 petitions for each family member, including your spouse and minor children, if possible.

If your derivative spouse and/or minor, unmarried child(ren) are eligible to file their adjustment of status with you, they will each need their own Form I-485, and they will also need to prove to USCIS that they are not otherwise inadmissible for permanent residency.  Whenever derivatives are involved, the application process for adjustment of status can get complicated with forms, timing, sponsorship, and other fine details.  Schedule your appointment today to speak with one of the immigration attorneys at Potra Law Firm to help give you guidance and file the applications for you. 

Am I eligible to Adjust Status under Section 245(i) Provision of the LIFE Act?

If you are or were the beneficiary or derivative beneficiary of an immigrant visa petition (I-130, I-140 or labor certification) properly filed on or before April 30, 2001, you may be eligible for special consideration under Section 245(i) of the LIFE Act.

These special considerations may allow you to obtain your permanent residence regardless of:

• The manner in which you entered the United States, including illegal entries;
• Whether or not you worked in the United States without proper authorization;
• Whether or not you failed to continuously maintain lawful status since your entry; and
• Whether or not you are in lawful immigration status at the time of filing your adjustment of status.

In order to be eligible, you must show that:

• You are or were the beneficiary or derivative beneficiary of an immigrant visa petition (I-130, I-140, or labor certification) properly filed on or before April 30, 2001;
• If the petition was filed on or after January 19, 1998 but on or before April 30, 2001, you must be able to prove that you were physically present in the United States on December 21, 2000, regardless of your immigration status at that time;
• You are able to pay the $1,000.00 penalty fee, which is statutorily defined; and
• You are otherwise eligible to adjust status, including having the relevant sponsor.

In addition to the $1,000.00 penalty, which must be paid along with the I-485 filing fees, you must submit Supplement A to Form I-485 and provide proof of the 245(i) qualifying petition.

Please Note: The 245(i) qualifying petition need not have been approved, or current at the time you adjust status. You merely need to show that it was “approvable when filed,” and that you have a current immigrant visa with which to adjust status. In such cases, the 245(i) petition will only be used to qualify for the waivers, not as the basis for your residency.

We recommend that you bring all documents to your initial consultation to see if you qualify for this great benefit. Even if you were a minor child at the time someone petitioned for one of your parents, you still may be able to benefit from Section 245(i). In addition, in some cases your derivative spouse or minor unmarried child may also be able to benefit from Section 245(i). Only an experienced attorney can tell you with certainty whether you are eligible to file, and what documents you need, so make your appointment today!

What is Registration or Registry?

Form I-485 is normally filed by individuals eligible to adjust status in the United States thanks to an available visa and because he or she last entered with the inspection.  “Registry” is a rarely used provision in immigration law that allows immigrants who have been present in the United States continuously for a long period of time to apply for their permanent residence, even if they are currently in the United States with no legal status. In order to be eligible for permanent residence through Registry, you must meet all of the following elements:

• You entered the united states before January 1, 1972;
• You have resided in the United States continuously since January 1, 1972;
• You are a person of good moral character;
• You are not ineligible for naturalization (citizenship);
• You are not removable due to your involvement in any terrorist activities; and
• You are not inadmissible due to your participation in Nazi Persecutions or Genocide, or as a criminal, procurer, another immoral person, subversive, a violator of the narcotics laws, or an alien smuggler.

Although Registry sounds simple and straight forward enough, you should still consult with the experienced attorneys at Potra Law Firm to help put your application together. Registry in particular requires close attention to detail and establishing a strong argument that you have continuously resided in the United States since January 1, 1972, with ample supporting evidence.

What are some common inadmissibilities or reasons my adjustment of status may be denied?

Determining inadmissibilities for adjustment of status is a highly detailed assessment of different factors in each individual case. We recommend that you see an attorney to assess your specific case before filing any paperwork.

In our experience, however, the most common inadmissibilites that we see are as follows:

• Unlawful immigration status at the time of filing;
• Failing to continuously maintain lawful status or violating the terms of your nonimmigrant visa;
• Engaging in unauthorized employment;
• Certain crimes that are considered “crimes involving moral turpitude”;
• Re-entering or attempting to re-enter the United States illegally after having previously been unlawfully present for one year or more after April 1, 1997;
• Alien smuggling, including your spouse or children;
• Public charge or likelihood of becoming a public charge;
• Use of fraudulent documents or misrepresentation to obtain an immigration benefit;
• False claims to U.S. Citizenship; and
• Orders of Deportation, Exclusion, or Removal.

If any of the above situations sounds relevant to your case, schedule an appointment today to discuss the facts with an attorney.  In most cases, there is a relevant waiver that can be applied to inadmissibility, or certain things are forgiven automatically through an immediate relative petition.  It is our goal to review your case as thoroughly as possible during your initial consultation, so do not hesitate to bring all relevant documents so that an attorney can have a full picture of everything involved, including your criminal court dispositions.

Additional Forms Associated with Adjustment of Status

When filing your Adjustment of Status package, there are some additional forms that are either required or optionally added.  You should be familiar with the purpose for each of the following forms, and make sure that you are advised by your attorney whether you must file any of these forms, or whether you are eligible:

Form I-864, Affidavit of Support

As a part of each Application for Adjustment of Status, the petitioner of the original I-130 immigrant visa is required to file Form I-864, Affidavit of Support, in order to show USCIS that the beneficiary has a qualifying financial sponsor and is not at risk of becoming a public charge.  In some cases, a beneficiary may file for a waiver of this requirement if he or she has earned enough qualifying credit hours in his or her Social Security Administration records.

Recently, both USCIS and the U.S. Consulates abroad have been focusing more of their attention on these affidavits, so it has become more important than ever to make sure that the affidavit of support is done correctly. An incorrectly prepared and filed Affidavit of Support can delay your adjustment of status by a few months at a minimum and cause the denial of your entire residency application in the most extreme of cases.

At Potra Law Firm, we are highly experienced with both USCIS and the U.S. Consulates and how they process the forms and which supporting documents are required.  You can trust in our experience and rely entirely on our attorneys and legal staff to ensure that your case is as strong as possible before it goes before an immigration official.

Form I-765, Application for Employment Authorization

An Applicant with a pending adjustment of status application is also eligible to file Form I-765, Application for Employment Authorization. This work permit will allow you to obtain a social security number, state-issued driver’s license, and allows you to be lawfully employed in the United States. Because the work permit application is tied to your application for residency, if your residency is denied then the unexpired work permit is also considered to have been revoked as of the date of denial.

Please Note: If you have ever held a driver’s license in any state, you should consult with an attorney at Potra Law Firm before applying for your new driver’s license.  In certain circumstances, it may be unadvisable to apply for a driver’s license due to possible criminal prosecution for fraud, which can seriously affect your pending adjustment of status.

Form I-131, Application for Travel Document

Applicants with a pending adjustment of status are also eligible to file Form I-131, Application for a Travel Document. While we normally do not advise that you travel during the pendency of your adjustment of status, we at Potra Law Firm understand that if you have family residing outside of the country, it can give you the security to know that you have permission to travel in the event of an emergency.  If you leave the country without this permission, your adjustment of status application will be considered to have been abandoned.

The I-131 application can be filed either at the beginning with the I-485, during the pendency of your case, or in rare, emergency circumstances can be filed directly with the local field office for same-day processing. While applicants for adjustment of status are eligible to file this application, an approved I-131 does not guarantee that immigration will allow you to return to the United States to complete your adjustment of status. For that reason, we recommend staying in the United States through the adjudication of your residency application, which normally takes 12-24 months to approval.

Learn more about:

> Petitions for Alien Relatives and Fiancé(e)s
> Adjustment of Status and Registry
> Consular Processing
> VAWA – Violence Against Women Act