An immediate relative of a United States citizen, can adjust his or her status to a legal permanent resident if the immediate relative meets certain criteria. The U.S. citizen is referred to as the "Petitioner" and the foreign immediate relative is referred to as the "Beneficiary" or the "Applicant". The Petitioner and Beneficiary file for the adjustment with U.S. Citizenship and Immigration Services (USCIS).
The following are immediate relatives of a U.S. citizen:
While there are more criteria, I will cover the main ones. The immediate relative must be in the U.S. If the immediate relative is outside of the U.S., he or she may still qualify for an immigrant visa to enter the U.S., but he or she cannot qualify for adjustment of status.
- spouse (husband or wife);
- child (must be an unmarried minor);
The immediate relative must have been inspected when he or she entered the U.S. This means that the immediate relative was allowed by the U.S. authorities to enter. For example, she entered through an international airport on a tourist visa.
While the Beneficiary is in the U.S., the Petitioner petitions for him by filing form I-130, Petition for Alien Relative, along with the requisite documents and fees, with USCIS. At the same time, the Beneficiary applies to adjust his status to a legal permanent resident (green card holder) by filing form I-485, Application to Adjust Status, along with required documents and fees.
While there are numerous documents that should be supplied along with the I-130 and I-485, one major category is that proving the existence of the immediate relative relationship. For instance, if the Beneficiary is the Petitioner's child or parent, birth certificate listing both is needed. If the Petitioner or Beneficiary's name is different than on the birth certificate, an official document showing that name change would be necessary. If the Beneficiary is the Petitioner's step-child due to marriage, the marriage needs to be documented.
USCIS pays special attention to Beneficiary spouses. If the Beneficiary is the Petitioner's spouse, a marriage certificate is necessary, but documentation showing that their marriage is real and not only entered into for immigration benefits is very helpful. Such documentation would include a wedding album, photographs of the couple with each other's family and friends, joint income tax returns (extremely important) and joint account statements (bank, loan, credit card, etc.). These are just some examples.
Another important category of documents is that proving how the Beneficiary entered the U.S. The best forms of proof are copies of form I-94, which should be in Beneficiary's passport, bearing the date of entry, entry category (type of visa) and period of authorized stay. Also, copies of any other entry stamps in the Beneficiary's passport and visa should be provided.
The I-130 and I-485 must be accompanied by Petitioner's Affidavit of Support, filed on form I-864, along with requisite documents. The Petitioner must earn at least 25% over the poverty line income for a household of the Petitioner's size. For instance, if the Petitioner will only live with the Beneficiary spouse, the Petitioner must have earnings at 125% of poverty line income for a household of two. If the Petitioner earns less income than required, a joint-Petitioner will be needed.
Along with the I-130 and I-485, the immediate relative can apply for temporary work authorization by filing form I-765, Application for Employment Authorization, along with requisite documents. The employment authorization should be granted within 90 days of the USCIS's receipt of the properly filed I-765 and all above forms. Temporary work authorization lasts for one year, and hopefully, by then, the Beneficiary has his permanent resident card (green card).
Also along with all of the above, the Beneficiary can apply for temporary permission to travel out of the U.S., which is called advance parole. This is filed on form I-131, Application for Travel Document, along with required documents. Note that an Applicant that has been in the U.S. for six (6) months or more beyond the date of authorized stay as set-out on form I-94, is not qualified for travel on Advance Parole. Such an Applicant should not depart the U.S. even if the USCIS does grant Adavance Parole. Such a departure could result in the Applicant being excluded from the U.S. for three to ten years. Advance Parole is granted for one year at a time.
All of the above can be filed at one time, and constitute what is some times called a "one stop" packet or package or an adjustment package or packet. Upon receipt of each properly completed form, USCIS issues a Receipt form. After a few weeks, the USCIS sends a notice for an appointment to collect the Beneficiary's biometrics (fingerprints, etc.). All time frames are estimates and subject to change at any time, but currently, about four (4) months after issuing the Receipts, USCIS sents a notice of interview.
Both Petitioner and Beneficiary must attend the interview. They must bring originals or certified copies of all copies submitted along with the adjustment package. The Petitioner and Beneficiary must respond to the Immigration Officer's questions truthfully.
If the case is approved, the Petitioner and Beneficiary will receive approval notices within a couple weeks, and within another couple weeks, the Beneficiary will receive his or her green card.
If the adjustment of status was for a spouse, and the marriage to the Petitioner was less than two years old on the date of the grant of permanent residence, the Beneficiary will receive conditional residence. In this case, the Petitioner and Beneficiary will need to file to remove conditions on residence within 90 days preceding the two year anniversary of the grant of the conditional residence by filing for I-751, Petition to Remove Conditions on Residence along with required documents and fee.
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