Family-Based Adjustment of Status: A Complete Guide

The Austin immigration attorneys at Michael G. Murray, P.A. can help with your family-based adjustment of status and prepare a green card application.

Family-Based Adjustment of Status and How We Can Help

The United States government authorizes a certain number of immigrant visas for family-based categories. However, the number of petitions from citizens and permanent residents for their family members is higher than the number of authorized immigrant visas.

Under the provisions of United States immigration laws, two categories of family-based immigrant visa categories, including immediate relatives and family preference categories, are authorized.

Our Austin immigration law office handles adjustment of status for immigrants who are in the United States and can pursue their green cards without returning to their home countries. Our law firm also oversees many cases involving consular processing of visas for applicants residing outside the United States. These cases require application at the appropriate U.S. consulate and review by the National Visa Center (NVC).

What Is Family-Based Adjustment of Status?

Adjustment of status is a process an individual can use to apply for lawful permanent resident status, also known as applying for a green card. An individual can use this process when he or she is physically present in the United States, allowing them to get a green card without returning to their home country to complete visa processing.

In addition, United States immigration laws allow a foreign national who is a family member of a U.S. citizen and lawful permanent resident to get a green card because of their family relationship. In this case, spouses, minor children, stepchildren, or parents of a naturalized citizen or green card holder can apply for a green card and become lawful permanent residents.

These visa categories are based on a close family relationship with a U.S. citizen, known as an Immediate Relative, or IR. The number of individuals that may fall within these categories is unlimited. The types of visas that fall within the IR category include the following:

• IR-1: Spouse of a U.S. Citizen
• IR-2: Unmarried Child Under 21 Years of Age of a U.S. Citizen
• IR-3: Orphan adopted abroad by a U.S. Citizen
• IR-4: Orphan to be adopted in the U.S. by a U.S. citizen –
• IR-5: Parent of a U.S. Citizen who is at least 21 years old

Michael G. Murray, P.A. is proud to be among the first immigration law firms in the country to have filed an adjustment of status (green card) application based on a client’s same-sex marriage. In addition, Mr. Murray has lectured on the topic of fraud as it pertains to gay marriage petitions involving a prior heterosexual marriage.

What Are Limited Family-Based Preference Categories?

While the number of immigrant visas for immediate relatives is unlimited, there are also visa categories for more distant relatives that are limited.

These visa categories are for specific, less immediate family relationships with a United States citizen and certain Lawful Permanent Residents. Unlike the above-mentioned categories, there are fiscal year limits on family preference immigrants. These, along with their numerical limits, include:

• Family First Preference (F1): Unmarried sons and daughters of U.S. citizens as well as any of their minor children. (23,400)
• Family Second Preference (F2): Spouses, minor children, and unmarried adult sons and daughters (age 21 and over) of Lawful Permanent Residents. A large majority of the visas available for this category will go to spouses and minor children, while the remainder is allocated to unmarried adult sons and daughters. (114,200)
• Family Third Preference (F3): Married sons and daughters of U.S. citizens as well as their spouses and any minor children. (23,400)
• Family Fourth Preference (F4): Siblings of U.S. citizens as well as their spouses and minor children, given that the citizens are 21 years of age or older. (65,000)

Have in mind that grandparents, aunts, uncles, in-laws, and cousins cannot sponsor a relative for immigration.

It’s important to note that if the number of qualified applicants for a category surpasses the available number of visas, there will be a waiting period. When this happens, the available immigrant visas will be issued in chronological order based on when the petitions were filed.

Family-Based Adjustment of Status Timeline

If you are in the United States and belong to the category of immediate relatives of U.S. citizens you may file Form I-485, Application to Register Permanent Residence or Adjust Status. That is called adjustment of status, and it gives you the opportunity to apply for a green card without leaving the country. You can file Form I-485:

• Together with Form I-130, or Petition for Alien Relative that is filed on your behalf;
• While the Form I-130 is pending
• After your Form I-130 is approved, as long as your Form I-130 application hasn’t been terminated or revoked.

If you are a foreign national who got married to a United States citizen, you have to make sure you are eligible for adjustment of status and a marriage-based green card. In case you have overstayed your immigrant visa, your marriage cancels that issue. To avoid legal complications, it’s better if you weren’t married when entering the U.S. but at least 90 days after.

When submitting an adjustment of status application and a Form I-485, you also have to submit additional supporting documents that will prove your marriage relationship, such as a copy of your marriage certificate, a Form I-130, Petition for Alien Relative, and the Affidavit of Support on Form I-864 for the immigrant. You will also have to prove that the marriage is a good faith marriage and not a sham to get a green card and pursue a lawful permanent residence.

These forms are filed with the U.S. Citizenship and Immigration Services (USCIS). Visas for immediate relatives are unlimited and immediately available. Their adjustment of status process begins as soon as the USCIS office receives the I-130 petition. When the petition is approved, the green card will be available.

On the other hand, in the case of a family-preference immigrant visa, Form I-130 is the first step, and it has to be filed with the USCIS office by a U.S. citizen or a green card holder. This form must be filed together with required documentation that shows eligibility and a qualifying family relationship. It’s best to have a qualified attorney help you with this.

When the USCIS receives the petition, the individual will be notified. If the petition is approved, the sponsored foreign national will have to wait until a green card is available for their category. The date the USCIS accepted your I-130 petition is called your priority date. It serves as your place in line because the number of available visas is limited.

Checklist for Adjustment of Status: Who Is Ineligible?

To be eligible for adjustment of status, the individual needs to establish that he or she was inspected and/or paroled and that they are admissible at the time of application. Some of the grounds that make someone ineligible for adjustment of status are as follows:

• You entered the United States while traveling to another country without obtaining a visa.
• You entered the U.S. as a nonimmigrant crewman.
• You were not allowed into the U.S. after being inspected by a United States immigration official.
• You are employed in the U.S. without the approval of USCIS, or you are not in the country legally anymore (with some rare exceptions). This guideline does not apply in the following cases:
• You are the parent, spouse, or unmarried child under 21 years old of a United States citizen.
• In specific cases of foreign medical graduates, international organization employees, and family members.
• You are a J-1 or J-2 exchange visitor who is required to comply with the foreign residence requirement of two years, and you haven’t met this requirement or had it waived.
• You have a diplomatic status (A), treaty trader or investor (E), or representative to an international organization (G) nonimmigrant status, or you are employed in an occupation that would qualify you for this status. Keep in mind that this does not apply to you if you file Form I-508. You must also submit USCIS Form I-566 if you are classified under status A or G.
• You were authorized to visit the 50 U.S. states or Guam under the Visa Waiver Program or the Guam Visa Waiver Program. However, this only applies if you are not an immediate relative.
• You are currently classified as a conditional permanent resident.
• You were admitted as a fiancé under a K-1 visa but didn’t get married to the United States citizen who petitioned for you, or you were admitted as the child of a fiancé under the K-2 and your parent didn’t get married to the individual who petitioned for you.

Those who have entered the United States without inspection aren’t eligible to adjust status, and they would probably have to apply for their green card through consular processing and may face some legal consequences such as the three-year or ten-year bar.

Of course, there are exceptions when it comes to eligibility for adjustment of status and submitting Form I-485. You may be able to apply for a green card and a lawful permanent resident status if you fall into exception categories or if you satisfy other legal requirements.

If you suspect that you fall within any of the above categories, please do not hesitate to contact our attorneys. We will thoroughly evaluate your situation and help you determine your best course of action.

Family-Based Immigration: Can You Stay in the U.S. While Adjusting Status?

When you apply for adjustment of status from within the United States, you’ll be able to stay in the country while your application is being processed by U.S. Citizenship and Immigration Services (USCIS), even if your visa has expired. However, it is crucial to understand whether you really have a pending green card application or not.

If you are in danger of a permitted stay expiring before you get your green card, consult an immigration attorney as soon as you can. Your attorney can analyze if you are eligible for a green card based on your visa history and green card application history, and explain if you are able to remain in the United States.

If you are not in the United States, but an immigrant visa number is available for you, you can visit the U.S. consulate or embassy in your home country to get your visa number and schedule an appointment for your immigration interview.

What to Expect at a U.S. Green Card Interview

Many candidates have to go through an interview during the adjustment of status process. Family-based status adjustment interviews take place at the local USCIS office. Read the appointment notice carefully – it will tell you what and who to bring, or rather who is required to attend. You can bring an attorney to represent you if you wish.

Also, remember that the USCIS doesn’t provide interpreters at adjustment of status interviews, so hire an interpreter to help if you are not sure you will understand questions. If you are applying for a marriage-based green card, the officer may ask you and your spouse questions regarding your married life, such as where you met or how many people were at your wedding. The purpose of these questions is to prove a good faith marriage or that your marriage is a real thing.

I-485 Family-Based Adjustment: How Long Does it Take?

Although the processing time for an I-485 application depends on the category of adjustment, it can take anywhere from 6 to 12 months when it comes to immediate relatives. The process can be expedited by filling both the I-130 and the I-485 adjustment of status application at the same time.

However, if immediate relatives are outside the United States, they have to wait for the approval of their I-130 before they can apply for green cards through consular processing at a U.S. embassy or consulate in their country.

After filing Form I-130, it could take several years for family preference categories to get their green cards. However, the processing times may vary even between family preference categories. For example, a higher priority is often given to spouses and minor children (F2).

The USCIS processes the I-130 petitions by the Priority Date. That’s why it is crucial to get onto the waitlist early. Therefore, the sooner you reach out to a skilled immigration attorney, the sooner you’ll be able to begin your new life in the United States with your family as permanent residents.

Reach Out to Our Immigration Attorney for Family-Based Immigration Assistance

At the law firm of Michael G. Murray, P.A., we work within the bounds of United States immigration law to reunite families and accomplish other immigration goals for our clients.

In connection with family immigration, our Austin immigration office also provides the following services:

• Uncontested divorces
• K-1 visas for fiancés and fiancées
• Joint Petitions to remove the conditions of residence (I-751)
• Waiver Petitions to remove the conditions of residence based on divorce (I-751)

Seeking lawful permanent residency or trying to adjust status within the U.S. can be confusing and complex. Our English- and Spanish-speaking staff can give you important information, including whether you meet eligibility requirements and make the whole process easier for you.

Do you need help from an immigration lawyer in Austin? Contact Michael G. Murray, P.A. today!