I get many phone calls from US Citizens asking if their foreign national loved one (spouse, fiance, parent, child) can adjust status in the US. For many of these callers, the answer is yes. If a foreign national is here, in the United States, and has a green card immediately available to him or her through an immediate relative, adjustment of status can allow someone to apply for and obtain permanent residence without having to leave the US. This can be especially helpful when the foreign national would otherwise incur an overstay bar upon leaving. There are some timing limitations to when the application should be filed but, for the majority of people, adjustment of status is an attractive option especially given the lengthy processing times for obtaining an immigrant visa at a US consular post abroad.
Adjustment of Status and Intent
Although it is true that many immediate relatives of US citizens can adjust status, it is not true for all of them. To be eligible to adjust status in the United States, the beneficiary must not have entered the US with the intention to stay and apply for a green card. The point in time when the immigrant made the decision to file for a green card is of utmost importance when examining the issue. Unfortunately, some people call me even before their loved one has arrived. In those cases, I must explain that it would not be lawful for the person to enter the US already planning on filing an adjustment of status case (although, sadly, some immigration lawyer has told them otherwise). The decision to adjust must be arrived at some point after the person has gotten here, but not so soon after arrival that immigration officials think it was planned all along. How to prove that there was no “preconceived” intent is something you and your adjustment of status immigration attorney should discuss prior to filing your application.
When Adjustment of Status Goes Bad
It is extremely important not to file an adjustment of status application unless you are well and truly eligible to adjust. When an adjustment of status application is denied, for whatever reason, the applicant can be placed into removal proceedings or (for people from Visa Waiver Program countries) simply sent home. Although being sent home or deported is not necessarily the end of the world, it can have dire consequences for subsequent immigration applications. For example, if an immigration officer were to decide that you had intended to file an adjustment of status application upon entering the US, you could be charged with misrepresentation and given a lifetime bar to immigrating. Although it may be possible to waive this bar, the waiver process is not easy. You’d also be facing a deportation bar that needs another type of waiver.
Alternative to Adjustment of Status
When a client or potential client is obviously not eligible to adjust status, I suspect there was preconceived intent, or when an adjustment of status case seems particularly risky, I always remind them that they can return home and consular process their green card case. It is important to keep in mind that adjustment of status is a privilege and not a right. Although an immigrant visa at a US consular post abroad must be granted if an applicant meets all of the (many) requirements, a USCIS officer does not have to let an applicant adjust status in the US and can send them home to finish processing. Although the vast majority of adjustment applicants get a good result, those with murky or unfavorable backgrounds may be denied simply because the officer does not think he or she is worthy of the privilege, even if the applicant is otherwise admissible.
For people who have not been unlawfully present in the US for more than 180 days and, thus have not incurred an overstay bar, the decision to file for adjustment or not can be a very easy one to make. However, clients who have been in the US without authorization for more than 180 days must typically decide whether to file for adjustment of status and risk being denied or return home and file a waiver for the prior unlawful presence.