While it might initially appear that 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 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.
We always apply for advance parole. However, 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. You should speak with us prior to traveling with advance parole.
John – a US citizen – files a marriage-based adjustment of status case for his wife Jane who is studying in the United States with a valid F1 visa. Since Jane’s F1 visa is still valid and she would like to visit her family in China, she leaves the United States without being granted an advance parole document thinking she can use the F1 visa to return. Upon returning to the United States, however, officials learn that she had filed an adjustment of status application and deny her reentry to the United States for immigrant intent. This is because the F1 visa is not a “dual intent” visa. Moreover, because Jane left the United States before being granted advance parole, her adjustment of status case is denied for abandonment. Now the couple must complete consular processing (which can take a very long time) while Jane waits in China. The couple is separated for more than two years.
Same as the prior example, but instead of being in valid F1 status when the case is filed, Jane was in the United States with an expired visitor visa. She knows she needs to obtain an advance parole document to return to the United states after filing the adjustment of status case, but she gets impatient because her friend is having a wedding in China. Therefore, she leaves the United States before the advance parole document is approved, planning on her husband John mailing the advance parole card to her in China. She is able to return to the United States with the advance parole card because nobody in Customs and Border Protection is paying attention. However, when she is at her interview for the green card, immigration officials discover that she left the United States before being granted advance parole. They deny her case for abandonment.
Overstaying a Visa Prior to Filing the Case
It is generally true that “immediate relatives” 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.
Jill enters the United States with a tourist visa valid for a six month stay. She has such a great time that she stays longer than authorized. She later marries Jack – a US citizen – and files for adjustment of status. The case is approved and she is granted permanent residency.
Same as the prior example, but in this example Jack and Jill start arguing and Jack files for divorce while Jill is waiting for her residency application to be approved. USCIS denies Jill’s application after learning that Jack no longer is living with Jill and supporting her application. Since Jill has no status, she is placed in removal (i.e., deportation) proceedings and requests voluntary departure. Since she had overstayed her visa more than 180 days before applying for adjustment of status, when she departs the United States she triggers a three year bar to reentry.
Josie – a US citizen – files a marriage-based adjustment of status case for her husband Levi. Levi is from Mexico and has been abusing his visitor visa. He has been living and working in the United States with it over the past several years. He has an easy time crossing the border with it despite this abuse as his working and living in the United States never comes up in discussions with the Custom and Border Protection officials. Josie and Live believe their case is easy because Levi has proof of entry to the United States from his last trip to Mexico. But at the interview, the immigration officer discovers that Levi had overstayed his visa during a prior trip by more than one year. Even though he subsequently entered the US with his visa, and no issues were raised by the Customs and Border Protection officials at the time, his prior overstay causes him to be subject to the 10 year bar, and he is required to file for a waiver of inadmissibility.
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.
Ryan obtains a visitor visa to visit the United States through the consulate in Peru where he tells the consular officer there he wants to visit his family in California. Ryan fails to mention that he had been in a romantic relationship with a girl named Linda from Colorado who he had met during her study abroad trip to Peru. When visiting the United States, Ryan briefly visits his family in California for a week, and then goes to Colorado to see Linda, moving in with her. They later marry approximately four months later and file for adjustment of status. USCIS is seriously concerned with this conduct, but approves the case. The outcome may have been different if Ryan never visited his family in California.
Elizabeth visits the United States to see her fiancee Cole. They later marry and file for adjustment of status. At the interview, the officer asks Elizabeth what questions she was asked by Custom and Border Protection officials upon entry to the Untied States. She tells them that she was asked where she was going, what she was doing and who she was visiting. She tells them that she said she was visiting her boyfriend in Austin, TX and that they planned on traveling on a road trip through California. The USCIS officer learns through investigations that Cole had already proposed to her, that he was actually her fiancee – not boyfriend – at the time, and that the couple had been telling friends and family that they were engaged. The USCIS officer requires Elizabeth to apply for a waiver of inadmissibility of fraud for misrepresenting Cole has her boyfriend.
Richard enters the United States with a visitor visa and signs a one year lease with his fiancee Jill three weeks later (even though he was only authorized to stay in the United States for six months). The couple gets married and files for adjustment of status 30 days after Richard enters the United States. Based on the persuasive authority of the Department of State’s 90 day rule, USCIS determines Richard must have lied to immigration officials when he came to the US due to the speedy nature of his actions to establish residency after arrival (and within 90 days). USCIS seeks to deny the case.
Josiah enters the United States with a J1 visa to study. He attends his program for one week and then quits to start working without authorization at a local bar. He then overstays his visa. Several years later he meets and marries a US citizen. They apply for adjustment of status. USCIS is very concerned that he did not attend the program and began working so soon after arrival in the US. USCIS seeks to apply the logic of the 90 day rule and deny the case.
Working Without Authorization in the United States
It is generally true that “immediate relatives” 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. Moreover, misleading immigration officials about unlawful employment would also cause a finding of inadmissibility for misrepresentation.
Fekerte enters the United States with a J1 visa and attends a program. She wants to stay in the United States longer, so she applies for a change of status to a visitor visa. She is granted the change in status and permitted to remain in the United States six months. She then files to extend this visitor stay for another six months. This extension request is granted. Fekerte then spends her time in Manhattan and later overstays. Several years later, she marries Rebecca in Nebraska and files for adjustment of status. At the USCIS interview, the officer inquires as to how Fekerte was able to live in Manhattan for so long when it is such an expensive city. Fekerte says she would babysit on occasion and room share. USCIS reviews the old application for the extension of the visitor visa and sees that Fekerte checked the box that she had never worked without authorization. This is inconsistent with Fekerte’s in-person testimony at the interview that she had started babysitting (unauthorized employment) shortly after her J1 visa program had ended and before filing for the extension of her visitor visa. Fekerte is deemed to have committed misrepresentation and must obtain a waiver of inadmissibility.
Juan files for adjustment of status through marriage. He had spoken with several immigration attorneys first through free consultations. They tell him that there is no problem with his case even through he overstayed his visa and worked without authorization because he is married to a US citizen. He files his case without hiring any of the attorneys. At the interview he is asked how he obtained the job he works at without work authorization. Not thinking it an issue, he simply tells USCIS that he said he was a US citizen and got the job. His case is denied and he is later deported for this false claims to US citizenship.
Same as the prior example, but this time instead of Juan admitting he said he was a US citizen to get the job, USCIS contacts the employer and obtains the I-9 and other documents needed to deny Juan’s case based on a false claim to US citizenship.
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. 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 code.
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 mention them to us.
Criminal History – It is critical that you discuss any arrest, charge, citation or conviction of the immigrant from anywhere in the world with the attorney prior to filing the 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! This is true even if the case was expunged.
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.
