Adjustment of Status (Green Card)
Adjustment of Status is the process by which foreign nationals are granted a permanent status in the United States with the ability to work and travel without many of the restrictions they encountered as non-immigrant visa holders or as foreign nationals without status. Adjustment of status is limited to only a few categories of foreign nationals including: certain relatives of current permanent residents or United States citizens; individuals who filed a successful Violence Against Women Act (VAWA) petition; refugees, asylees, or individuals who were granted cancellation of removal or other relief by an Immigration Judge while in court proceedings; and certain employees of U.S. businesses and institutions including those who are able to demonstrate extraordinary ability in their field of endeavor, outstanding academic and scientific researchers, multinational managers and executives of corporations, and those whose work is in the national interest of the entire United States.
When a foreign national is granted adjustment of status by USCIS his/her status changes to that of “United States Resident.” A resident receives an identification card, also known as a “green card,” as evidence of their status. With adjustment of status, a resident is able to legally work in the United States, own property, travel internationally, and obtain other vital services reserved for individuals with lawful immigration status.
While adjustment of status comes with many benefits for the applicant, the process tends to be complicated and intimidating for those involved. Beyond the adjustment of status application, applicants usually have to file a relative petition application, employment authorization application, affidavit of support application, and numerous forms of supporting documentation. Due to the complicated nature of an adjustment of status request it is important that you contact an experienced immigration attorney to walk you through the process and assess the possibility of any potential dangers associated with your filing.
If you have questions or would like to begin the adjustment of status application process, feel free to contact Gonzalez Olivieri LLC at 713-481-3040, or contact us online today.
We often talk about our “broken immigration system.” What do we mean by that? One of the biggest mistakes that Congress made in the 1996 amendments to the Immigration and Nationality Act was the creation of a concept called “unlawful presence” and certain bars to admission which are triggered after accruing certain amounts of “unlawful presence.” In short, if you entered or remained in the United States without any lawful status after April 30, 1997, you began to accrue days of unlawful presence. If a foreign national accrues 6 months of unlawful presence and then leaves the United States, he or she triggers a 3 year bar to being readmitted into the United States. If a foreign national similarly accrues 1 year of unlawful presence and leaves the United States, he triggers a 10 year bar to being readmitted to the United States. Why was this a mistake? Because individuals used to come to the United States to work and then leave again to be with their families. But the modern law punishes individuals for leaving. So, as you would expect, people came to work, and then stayed.
Fortunately, many of these stuck individuals married United States citizens. This allows even illegal aliens to adjust their status and become permanent U.S. residents except for one little catch: to adjust your status it is necessary to have been lawfully admitted or paroled into the U.S. Sounds like an easy fix, right? Just leave and come back legally, and presto, you have been “admitted” to the U.S. Except remember what happens when you leave after accruing one year of unlawful presence: you instantly become barred for ten years. The only option then was to leave the U.S. and file an unlawful presence waiver application with the U.S. consulate in your home country and then reenter legally. But the Department of State may take a year or more to approve your visa–meanwhile your U.S. citizen spouse and children are eating out of the dumpster. And if they deny the visa, you are stuck outside the U.S. for a decade. In short, for most people, the waiver was not worth filing.
In 2012, the Obama administration came up with a way to work around this problem called a “provisional waiver.” A provisional waiver is a process identical to that described in the proceeding paragraph except that you can apply for it before you leave the United States. So the long delays and the real risk of getting stuck outside the U.S. vanish. If it gets denied, you are no worse off than before because you haven’t yet triggered the ten-year bar. And if it gets approved, you leave and only have to spend a few weeks away from your family.
Provisional waivers are extremely complicated and require you to show “extreme hardship” to a U.S. citizen or lawful permanent resident spouse or parent. It is highly advisable to hire an experienced immigration lawyer to handle this process for you.
One final note: the provisional waiver program currently applies only to “immediate relatives,” i.e., unmarried children (under 21), spouses, and parents of U.S. citizens. Other family-based categories (e.g., brothers and sisters of U.S. citizens) are out of luck and have to risk leaving the U.S. and triggering the unlawful presence bar.
However, USCIS is currently writing regulations to expand the availability of provisional waivers to anyone who would seek an unlawful presence waiver. So if you are the spouse or child of a permanent resident, or the brother or sister of a U.S. citizen, or the adult and/or married child of a U.S. citizen, or even an employee with a valid labor certification, and that person or employer has filed an approved and current visa petition for you, you may soon be eligible for a provisional waiver as well as long as you also have a qualifying U.S. citizen or lawful permanent resident parent or spouse (and that does not have to be the same person who petitioned for you). Gonzalez Olivieri LLC will provide more information as soon as the final regulations are published.