Inadmissibility and Other Problems
While it might initially appear that marriage-based adjustment of status cases are not that complicated, there are several traps for the unsuspecting. Each case should be approached with a healthy respect for the legal system, and it is important to educate yourself about possible issues that might arise.
Traveling Outside of the United States After Filing the Case
Once the marriage-based adjustment of status case is filed, the immigrant generally cannot leave the United States until approved for advance parole unless they have a “dual intent” visa. Most all visas are not dual intent.
Our software completes an application for advance parole. This does not mean that it is prudent to use the advance parole document. In rare cases, even immigrants with an advance parole document should not leave the United States while their case is pending. Speak with a qualified immigration attorney if you have any questions about traveling while your case is in process.
Overstaying a Visa Prior to Filing the Case
It is generally true that spouses of US citizens can be granted permanent residency through the process of adjustment of status even if they have overstayed their visa. There is an automatic forgiveness built into law for a simple overstay. That does not mean that you should fall out of status or wait an unreasonable amount of time to file your case. Marriages dissolve and cases can be denied. If that happens to you, being out of status when you file the adjustment of status case could negatively impact your future immigration to the United States.
The Important Consequences of Unlawful Presence
An immigrant starts to accrue unlawful presence in the United States if the person is over 18 years old and remains in the United States past the period of authorized stay. If the person accrues 180 days or more of unlawful presence and then departs from the United States without advance parole, the person triggers the 3 year bar to admission. If the person accrues one year or more of unlawful presence and then departs from the United States, the person triggers the 10 year bar to admission. If the person accrues a total period of unlawful presence in the aggregate (meaning during multiple trips) of one year or more of unlawful presence and then departs from the United States, the person also triggers the 10 year bar to admission. If the adjustment of status application is properly filed, the period of unlawful presence generally will be tolled during the time the application is pending. You should attempt to file your case prior to accruing 180 days of unlawful presence, or one year of unlawful presence in the aggregate, if you already have 180 days of unlawful presence. That way, if your case is denied, and you must leave the United States, you will avoid bars to readmission.
A Special Note to ESTA (Visa Waiver) Entrants
In addition to the legal consequences mentioned above, individuals who enter the United States without a visa pursuant to the ESTA application program (i.e., visa waiver program) are subject to special administrative removal procedures if they overstay. There are so few safeguards available to such individuals, that the adjustment of status case can be stopped entirely if the individual is administratively removed. The individual can be held without bond and removed without seeing a judge.
In our experience, these types of removals are rare. However, the mere possibility of such a drastic event taking place is even more reason for clients who entered through ESTA or the visa waiver program to not delay in the filing of their adjustment of status case. In fact, some attorneys take the very conservative approach that all cases should be filed within the 90 day period of authorized stay despite the “90 day rule” regarding visa fraud and immigrant intent (discussed below).
The Impact of the Department of State’s 90 Day Rule and Visa Fraud Investigations
Immigrants should be aware that USCIS will scrutinize all records from prior visa applications (student visa, visitor visa, etc.), and all actions taken by the immigrant within 90 days of entering the United States, to determined if the immigrant misled immigration officials in the past.
Actions taken within 90 days of entry to the United States, such as marrying a US citizen and starting to reside with that person, or taking a job, etc., may be viewed as potential evidence of fraud at the time of entry to the United States. This could cause problems for your case, and may ultimately result in the denial of your case and removal from the United States.
Working Without Authorization in the United States
It is generally true that spouses of US citizens can be granted permanent residency through the process of adjustment of status even if they have worked in the United States without authorization. There is an automatic forgiveness built into law for simply working without authorization. However, falsely claiming to be a US citizen to gain employment would result in denial without waiver. Moreover, misleading immigration officials about unlawful employment would also cause a finding of inadmissibility for fraud.
Admission of Immoral/Illegal Activity and Criminal History
Admission of Marijuana Usage, Illegal Activity or Immoral Activity – Simply admitting to having tried marijuana in a state that has legal marijuana usage would likely cause your case to be denied and the immigrant deported. This is because marijuana is illegal federally.
Admission to having visited a prostitute in a country where it is legal would also cause an immigrant’s case to be denied. This is because visiting a prostitute is considered an immoral act with reference in the immigration law.
Admission of other activity could also cause the case to be denied and the immigrant to be deported. If you have any concerns, please contact a qualified immigration attorney.
Criminal History – It is critical that you discuss any arrest, charge, citation or conviction of the immigrant from anywhere in the world with a qualified immigration attorney prior to filing a marriage-based adjustment of status case. All criminal history, no matter how small or insignificant it may seem to you, has the potential to cause serious problems, including case denial and removal from the United States!
Receipt of Public Benefits and Public Charge
Receipt of public benefits (health, housing, etc.) can cause the immigration to be denied on public charge grounds. Before accepting benefits of any kind, you should speak with the attorney.
Miscellaneous Deadlines to Keep in Mind
Aging Out of Children – If you have a child or children who may need to immigrate to the US, you should discuss options with a qualified immigration attorney immediately. There are several deadlines that may prevent a child from immigrating, and it is important to be aware of your options. For example, when a child turns twenty one years old or marries, the US citizen parent can no longer petition for that child as an “immediate relative” – therefore, it is said that the child “ages out” when the child turns twenty one and a petition has not been filed. In such a case, there may be no other ways to legally immigrate available to the child. Also, stepchild/stepparent relationships do count for immigration purposes in most cases, however, the relationship will not be considered legally sufficient unless the marriage establishing the stepparent/ stepchild relationship is entered into prior to the eighteenth birthday of the child.
One Year Filing Deadline for Asylum Cases – While this website is about marriage-based adjustment of status cases, it is worth mentioning that all cases for asylum must be filed within one year of arriving in the United States. This is true whether you file a case for adjustment of status or not. Speak with a qualified immigration attorney if you fear returning to your country of origin
Expiring Work Authorization Document – While it is rare, it is possible that you will need to renew your temporary work authorization document if your adjustment of status case is pending for a long time. It is important to file for a new work authorization document well in advance of your prior document expiring. We suggest any time in the six month period prior to the expiration of the first document. If you delay, and the new request is not received by USCIS in a timely manner, there may be gaps in employment authorization and you could be terminated from your job. We are happy to assist filing for a new work authorization document for an additional fee.
NVC Termination Proceedings and Loss of Filing Fees – For consular processing cases, once a case is at the National Visa Center and there is an available visa, it is important to quickly submit all required documents and communicate with the NVC. If a year passes, filing fess paid for the DS-260 and Affidavit of Support will be lost, and you will need to repay them. Also, once a year passes, the NVC will initiate termination proceedings to terminate the approval of the Form I-130. If that happens, the I-130 will need to be filed again, if still possible. We encourage all clients to quickly work with us to process their cases without delay. The attorney will not respond to termination letters from the NVC or assist with termination proceedings cause by prolonged delay.