Adjustment of status (AOS) is a process of changing the status of a person from non-immigrant to that of lawful permanent resident (green card holder). In adjustment of status process the person does not have to leave the country and to apply for immigration from another country.
The following is a checklist for an I-130 Petition for Alien Relative for a US citizen or Lawful Permanent Resident sponsoring an immediate relative or family preference alien to get a US green card.
As each case is unique the list is for reference only. The checklist assumes a US citizen wanting to bring her foreign spouse to the United States.
Other family relationships will need different documents to get the I 130 approved.
USCIS current I-130 Form, Petition for Alien Relative.
Copy of the birth certificate for the US Citizen, (front and back), or a copy of ALL pages of the US Citizen’s passport. A copy of a naturalization certificate or certificate of citizenship issued by USCIS or the former Immigration and Naturalization Services are also acceptable evidence of US citizenship.
A copy of the marriage certificate, if applicable. If the ceremony was abroad, a copy of any relevant document to show that the marriage was lawful in the foreign country.
Signed and dated USCIS form G-325A filled out by the US Citizen signed and dated.
One passport size photo (in the prescribed form) of the US Citizen with the full name of the US citizen on the back.
Signed and dated USCIS form G-325A filled out by the foreign spouse.
One passport size photo (in the prescribed form) of the foreign spouse with the full name of the foreign spouse on the back.
Acceptable evidence of a bona fide marriage – documents showing comingling of funds (trust with money), life insurance with either spouse as beneficiary, joint ownership of property, affidavits* from third parties with personal knowledge of the marriage relationship, pictures of the wedding ceremony, marriage certificate, birth of certificate of any children born to the marriage, and shared liability for household expenses.
A copy of an earlier spouse’s death certificate or divorce decree if either spouse was married before.
A check for the required USCIS fee. A check is preferable to money order.
If any document is not in English, the original document must be submitted together with an English translation and certificate of translation by the translator.
*Note: Requirements for the affidavit.
Each affidavit should contain;
the full name and address of the person making the affidavit,
date and place of birth of the person making the affidavit,
his or her relationship to the petitioner of beneficiary, if any,
full details explaining how the person acquired his or her knowledge of your marriage,
details of what he or she knows about the marriage.
Use numbered paragraphs and head the document AFFIDAVIT.
The affidavit must be signed and date before a notary public.
The death of a family member is very difficult to go through. But when the person who died was an immigration petitioner on an immigration petition which is still pending, the immigration beneficiary is left with added immigration worries.
In the past only widows and widowers could continue to seek immigration status despite the death of their petitioning spouse. For many years, USCIS had taken the view that the law did not let the beneficiary of a visa petition get approval of the petition if the petitioner died while the petition remained pending (i.e. the petition died with the petitioner). Furthermore USCIS had internal rules for revocation of approved petitions when the petitioner died.
But Congress under INA 204 (l) (Department of Homeland Security Appropriations Act, 2010) expanded the categories of persons who may continue to seek immigration status (as though the petitioning relative had not died) to other categories of relatives, as well as to T and U non-immigrants, I-730 asylum derivatives, and derivative beneficiaries in employment and family based preferences. Section 204(l) of the Act applies to any immigrant visa petition, refugee/asylee relative petition, or application adjudicated on or after October 28, 2009. Recently the USCIS has issued policy guidance about how it will carry out INA 204(l) in practice.
Who is eligible?
The surviving foreign national is eligible if she;
Resided in the United States when the qualifying relative died;
Continues to live in the United States on the date of the decision on the pending petition or application; and
Is at least one of the following:
The beneficiary of a pending or approved immediate relative visa petition;
The beneficiary of a pending or approved family based visa petition, including both the principal beneficiary and any derivative beneficiaries;
Any derivative beneficiary of a pending or approved employment-based visa petition;
The beneficiary of a pending or approved Form I-730, Refugee/Asylee Relative Petition;
An alien admitted as a derivative “T” or “U” nonimmigrant; or
A derivative asylee under section 208(b)(3) of the Act.
Reinstatement under INA 204(l) – U.S. residence
Reinstatement under 204(l) is by statute for qualifying applicants through a written request (no standard form). The letter should specify the applicant is seeking 204(l) reinstatement. The applicant should send the letter accompanied by documentary evidence as proof of eligibility such as a death certificate, evidence of continuous residence in the U.S., and evidence of a relationship with the qualifying relative.
However, if an applicant has already filed Form I-485 for adjustment of status, a request for reinstatement together with documentary evidence as proof of eligibility should be sent to the same office to which the application was sent.
Aliens with an approved petition must apply for section 204(l) reinstatement to continue seeking permanent residence as the USCIS has a procedure to revoke approved petitioner when the petitioner dies.
Reinstatement on humanitarian grounds – regardless of U.S. residence
In certain circumstances, a survivor who would otherwise qualify under section 240(l), but for residing outside of the U.S. at the time of the qualifying relative’s death, might be allowed to ask for “humanitarian reinstatement” under 8 C.F.R. § 205.1(a) (3)(i)(C)(2) if he/she was the beneficiary of a petition approved before the death of the qualifying relative. With an approved petition, the alien should seek reinstatement by writing a letter accompanied by documentary evidence such as a death certificate and evidence of a relationship with the qualifying relative to the USCIS office that adjudicated the petition, not where the petition was filed. Humanitarian reinstatement is discretionary. Both humanitarian reinstatement and reinstatement under 204(l) may be filed simultaneously.
Affidavit of Support
A legally binding Affidavit of Support is required for certain applicants for intended immigrants under 8 C.F.R. § 213a. But where the petitioner dies an Affidavit of Support may be obtained from another close relative as substitute sponsor [INA §213A(f)(5)(B)]. This is true even if the relative died after submitting an Affidavit of Support as an affidavit of support must be valid at filing and approval of the immigration application. Proof of the relationship between the beneficiary and the close relative must be submitted with the substitute affidavit.
There is no need for an affidavit of Support from a substitute sponsor if the alien is exempt from the affidavit of support requirements. Certain categories of applicants including intended immigrants with 40 quarters of qualifying employment are exempt from the affidavit of support requirement.
An applicant’s reinstated petition will keep the original priority date. USCIS policy permits applicants to file their I-485, petition to adjust status and a request for reinstatement under INA §204(l) for the underlying petition at the same time, so long as the priority date is current.
Waivers of in-admissibility – based on extreme hardship
Sometimes the alien is inadmissible because of past criminal issues or immigration violations and therefore cannot get immigration status unless he obtains a waiver. The death of the qualifying relative may be used to get an extreme hardship waiver. But in such a case no real hardship to the qualifying relative need be shown since that person has died.
If you are a foreign national and the relative who filed an immigration petition for you has died consult an immigration attorney promptly to decide your eligibility to continue seeking a better future in the United States. After all this is what your deceased relative who petitioned for you would have wanted.
A conditional permanent resident CPR who obtained his or her green card status through marriage of less than two years to a U.S. citizen or lawful permanent resident must file Form I-751, Petition to Remove the Conditions on Residence, on time to remove the conditions on residence. A failure to file the I-751 will end permanent resident or green card status.
When to file?
A jointly filed form I-751 petition with supporting evidence must be filed between 21 to 24 months after the CPR’s admission or adjustment to permanent residence. An interview is usually not required but it may be required where the adjudicator determines that an interview would be useful to decide whether the marriage is in good faith.
Late filing allowed in rare circumstances
A jointly filed I-751 petition filed after 24 months since the CPR’s adjustment may be considered only if the CPR is able to prove good cause and extenuating circumstances for the failure to file in a timely manner. The circumstances that cause the delay must be extraordinary and outside of his or her control.
Written explanation required
A CPR must file an untimely petition with a written explanation (use a sworn affidavit) of his or her late filing and a request that USCIS excuse the late filing. Without a written explanation and a request for an excuse the USCIS will issue an I-751 denial notice. The denial notice may result in a notice to appear or NTA, which begins the deportation process.
What is good cause and extenuating circumstances?
Some examples of what constitute good cause and extenuating circumstances are;
death of a family member,
the recent birth of a child (particularly if there were complications), and
a family member on active duty with the U.S. military.
The USCIS adjudicator has broad discretion to decide what is good cause and extenuating circumstances so it is important to support the explanation and request with credible evidence (e.g. medical records, affidavits) that prove good cause and extenuating circumstances.
If you are making a late filing of form I-751 please contact an immigration attorney before doing so. There are also I-751 waivers for battered spouses of U.S. citizens or LPRs that will excuse a late filing.
Some immigration officers are more interested in questioning a couple than in paper documentation of the marriage. Even with extensive documentation of the good faith of the marriage they may still put more weight and credibility on what they learn from the couple’s face to face adjustment of status interview. As there are no magic list of immigration marriage interview questions, preparation for the immigration marriage interview is critical.
Here are 7 tips for marriage interview success:
Arrive early. Fifteen to twenty minutes early is best. If you have never been to the USCIS Service Office, do a test-run the week before at a similar time to the scheduled interview time to find out about traffic and parking.
Bring originals. Be sure to bring originals and copies of all documents submitted with the application to adjust status including recent pay stubs, and passport.
Wedding rings. Remember to wear your wedding rings to the interview.
Photos. Bring your albums with photos of marriage ceremony, trips and social outings with friends and family to show the interviewing officer. A picture is worth a thousand words. But choose pictures carefully. Avoid any picture that could be seen as culturally offensive or otherwise inappropriate.
Bring your house keys. Do you each have a copy of the same house or apartment key?
Cell-phones. Bring your cell-phones with each others number on speed dial.
Relax. Act affectionately and naturally with each other. Do not pretend that the marriage is perfect. A real one never is.
I know I said seven tips but here is another important one for those who will have an attorney or representative present at an interview and want to make sure that their interview is fair. If your attorney will attend the interview with you do NOT agree to an early interview if your attorney has not yet arrived. If the examiner asks you to agree to an early interview before your attorney arrives politely say NO and ask for the interview at the scheduled time when your attorney will arrive. Remind the examiner of the signed G-28 on file indicating that you are represented by an attorney. Your future immigration status may depend on it. This applies to any immigration interview in which you have a right to legal representation.
If you have any questions or concerns about an upcoming green card marriage interview, please consult an immigration attorney for help in preparing you for the issues that could arise from your unique situation.
If you fail to convince the immigration officer at your first marriage immigration interview that your marriage is in good faith, the USCIS may give you written notice of a marriage fraud interview known as a Stokes interview. A Stokes interview is a taped interview in which the USCIS separates you and your spouse and ask questions. The goal is to decide whether your marriage is in good faith and not solely for gaining an immigration benefit.
At the Stokes interview you and your spouse will be sworn in and questioned separately. The examiner will compare your answers to the answers of your spouse and look for any discrepancies. If you give the same answers you will pass. If you don’t, you will be given an opportunity to explain any discrepancies.
As you and your spouse are under oath and the interview is taped it is very important that your answers be truthful. Giving false testimony under oath will not just result in denial of your green card but it is also a crime. You should not guess about what your spouse will say. If you do not know the answer or do not remember it is better to say so and not guess or make things us.
What to bring
It is important that the petitioner brings either a U.S. passport or a driver’s license and a social security card. You must bring the original documents you brought to the first interview to the Stokes interview. Be sure to bring your passport, I-94 and social security card, if you have one. You should also bring any other documents to support the petition as the examiner should consider other evidence besides the interview. Examples are bank statements, lease agreements, rent receipts, mortgage agreements, health insurance policies, utility bills, tax returns and photos. You should also bring your last two pay stubs and statements and employment letters for both of you. The letters should be on company letter head signed by an official of the firms, stating when employment began, salary, dependents claimed and whom to notify in case of emergency.
Types of questions that may be asked
The Stokes interview is similar to the first green card marriage interview except that you and your spouse will be questioned separately. In the weeks before the interview you and your spouse should focus on communicating with each other and spending time together. Pay close attention to the minor details of your marriage.
Examples of the type of questions marriage immigration interview questions that may be asked at a Stokes interview are:
How did you meet your spouse?
When did you meet?
How long did you know each other before you got married?
Where did you go on your first date?
Where did you and your spouse live before getting married?
Who was at your wedding?
Did you have a wedding reception?
Describe the lay out of your apartment?
How many TV’s do you have?
What is the last movie you and your spouse saw together?
Where did you go on your honeymoon?
When was the last time you and your spouse were intimate?
Where did you and your spouse first live together after marriage?
What side of the bed do you sleep on?
What brand of cigarette does you spouse smoke?
What is the color of the wall in your bedroom?
Do you have lamps in the bedroom?
What did you have for dinner last night?
What is your spouse’ favorite food and drink?
At which restaurant did you last have a meal together?
What is the color of your spouses tooth-brush?
What is the color of the living room carpet?
How many brothers and sisters does your spouse have?
What are the names of your spouse’s parents?
What did you give your spouse as a birthday gift last year?
What is your spouse’s date of birth?
Is your spouse left-handed or right-handed?
Has your spouse met your mother?
Do you pay the water bill separate from the rent?
Did your spouse sleep at home last night?
You should listen carefully and only answer the questions that the interviewer directs to you personally. Do not answer any questions addressed to your spouse without first asking permission from the immigration officer. Remain calm and answer the questions truthfully. Do not argue with the examiner.
Finally, you have the right to bring an attorney and a translator with you to the interview. In fact you are strongly urged to bring an attorney to make sure that the questions asked are legally relevant to the process. An attorney will also be able to raise objections with the examiner and/or examiner’s supervisor after the interview. Remember it is your responsibility to make sure that you attorney shows up on time as the absence of an attorney by itself is not generally good cause to postpone an interview.
If you have a translator, the immigration officer will also swear in him or her to give exact translations. It is important that the translator translate each question and each answer sentence by sentence. The translator must not explain things or answer questions on your behalf. Before attending a Stokes interview you should consult an immigration attorney as failure to convince the immigration officers that your marriage is in good faith could result in removal proceedings before an immigration court.
If you and your spouse live together and have a bona fide marital relationship you should have no problem passing a properly conducted stokes interview. But consult an attorney. Leave nothing to chance.
Adjustment of status is the process of applying for a green card (become a lawful permanent resident) by non-immigrants who are already in the United States. The applicants are not required to leave the United States and go through the hassle and delay of applying abroad. An applicant seeking adjustment of status must have made lawful entry into the United States which means admission into the United States after inspection by an immigration officer.
Green card Petition
An adjustment of status application usually does not stand alone (except in diversity visa, asylum or refugee cases). It is based on a petition for an immigrant visa that is immediately available or a prior approved petition for an immigrant visa. The person who does this petition is usually an employer or a family member such as a spouse or parent. For applicants who have married a United States citizen, the green card application and the immediate relative petition can be filed at the same time and they do not need to await the approval of the petition.
Obtaining a green card is discretionary
An adjustment of status by USCIS is discretionary. Obtaining a green card is a privilege, not a right. USCIS will check the applicant’s immigration and criminal history carefully to decide if there are any obstacles (in-admissibility factors) that could prevent issuance of a green card. However, applicants married to a United States citizen may have some obstacles waved such as overstaying or earlier unauthorized work. Even if the applicant has a criminal history that could be an obstacle, he may be able to able to apply for a waiver. A waiver is a request that the immigration service “forgive” past criminal convictions or other obstacles.
Is the marriage true and real?
The immigration services will also test (using the documents you send and the adjustment of status interview) whether there is a level of trust between the applicant and the United States citizen spouse that would be expected in a marriage. To prove trust in the application process the applicant and spouse must prepare documentary evidence of their marriage. To prove trust at the adjustment of status interview it is important that communication between husband and wife is open enough for them to answer questions about each other (spouse’s date of birth and income, the details of how the couple met) that an immigration officer may ask of the couple.
Green Card Checklist –Documents you need to get
Documents that carry a lot of weight and credibility with the immigration services in proving a marriage follow. Any documents not in English must be translated into English for proper submission to the USCIS.
Birth Certificate of both parties
Marriage Certificates (If the marriage took place abroad, give a copy of the foreign law relied on to prove the marriage is valid in the foreign country.)
Divorce Decrees for any earlier marriages
Passport – of the applicant
AR-11, Arrival Departure Document
Joint Obligations – Receipts showing join obligations for living expenses (lease, cable, utility bills, auto insurance) – applicant should make sure that accounts have both names.
Joint Ownership of Property – Title that shows joint ownership of property – car title, deed
Joint Management of Finances – Evidence of joint management of finances – joint bank account, life insurance, pension with spouse named as beneficiary. This is very important because it clearly indicates trust (people tend not to trust their money to strangers.)
Photos of the Couple
Wedding Invitations, wedding gift cards
Wedding Photos – also photos from honeymoon, if any
Correspondence addressed to either or both spouses at the same address
Join Tax Returns and W-2s (last two)
Spouse as Emergency Contact – Employment Letters from applicant and spouse on company letterhead and signed by an official of the firm, stating when employment began, salary, marital status, dependents claimed and whom to notify in case of emergency.
The latest two pay stubs/statements.
This is merely an overview of adjustment of status. Please discuss the specifics of your case with a competent immigration attorney as complex legal issues may arise during adjustment of status.
A k-1 visa is a single entry visa that permits admission of the fiancé (e) of a U.S. citizen, as a non-immigrant for 90 days to marry that U.S. Citizen and apply for adjustment of status (a green card). The minor unmarried children of the k1 beneficiary who go with or follow to join her are typically granted K2 visa status.
Your K-1 process begins when your U.S. Citizen fiancé(e) files Form I-129F on your behalf with the United States Citizenship and Immigration Service (USCIS) district office responsible for where he or she lives or intends to live (if U.S. citizen is abroad).
Notice of Action
Once your fiancé (e) has received a notice of action you should begin assembling the relevant documents to support your application as some documents may take much time to get.
You should assemble the following documents in support of your application as some may take much time to get.
Passport(s) valid for travel to the United States – for you and any dependent children accompanying or following to join you.
Birth Certificate(s) – Obtain the original, certified copy of the birth record, or secondary evidence for each family member (yourself and all minor unmarried children) even if the children are not immigrating with you.
Evidence of the end of earlier marriages – final divorce decree, annulment or death certificate.
Police Certificates for each applicant aged 16 year and over. Obtain police certificates from the police authority where you live or any place where you have lived for 6 months since you have reached 16 years old.
Proof of relationship to the petitioner – gather your letters, dated photographs showing you together as a couple, affidavits from people with person knowledge of the relationship, e-mails, telephone bills, documentation of wedding plans and invitations. Airline tickets, visa stamps and receipt for the engagement ring may also be used
You should give accompanying certified English translations of all documents not in English, or in the official language of the country in which application for a visa is made. The translation must include a statement signed by the translator that states that the:
(i) Translation is correct, and
(ii) Translator is competent to translate.
Once the USCIS approves the petition it will then send it to the National Visa Center for forwarding to the proper consular post. Once the consulate receives the petition it will issue a letter to you stating that the consulate is ready to begin processing your k 1 visa application.
The Consulate will send you a set of document often called Packet 3 in order it to process your case. Sometimes the Consulate will not include the above forms. Rather it will send a letter with the applicant’s case number and a visa sheet with step by step instructions on how to go ahead. If this is the case the applicant can download the forms from the consulate website and return them to the Consulate. In Packet 3 should find:
K1 Visa Checklist Form IV-15
Form DS-230 Part I (Biographic Data) – You must complete and return this form immediately for the Consulate to process your case. Each person applying for a visa must complete biographic data Form DS-230- Part I, regardless of age. You may photocopy the form you received insufficient copies for each family member.
Form DS-156 in duplicate (non-immigrant visa application). If your unmarried children under 21 are accompanying you, two copies of Each Child must complete Form DS-156. Please do not sign this form. You must sign it in front of the consular officer on the day of your formal interview.
Form DS-156K in duplicate (Non-immigrant Fiancé (e) Visa Application). Please do not sign this form. You must sign it in front of the consular officer on the day of your formal interview.
Form DS-157 in duplicate (Supplemental Non-Immigrant Visa Application) – only required for men aged 16-45
Information sheet DS-2000 (Lists evidence which you or your fiancé (e) may present to meet the public charge provision of the law). Your fiancé (e) may file Form I-134 with supporting documentation.
Sometimes the Consulate will send information about scheduling a Medical Examination at this time.
Complete and send back the following forms to the Consulate:
Form DS-230-I (Part I only) for each person applying for a visa, regardless of age
Leave unsigned Forms DS-156
Leave unsigned Forms DS-156K
Form DS-157 (if applicable)
Form IV-15 -if required documents are already prepared.
If not already done so, assemble the relevant documents required in support of your application, and mark the documents off on Form IV-15 as you collect them. Do not send these documents to the Consulate.
Sign and date Form IV-15 and forward to the Consulate.
Upon receipt of the above documents, the Consulate will continue any extra processing and tell you about the scheduling of the medical interview and the appointment for the formal visa interview.
Schedule and have the Medical Examination. Arrange for a medical examination with one of the physicians listed on the attached visa instruction. You are responsible for the cost of the examination. A medical examination is also required for each child who will go with you.
Photographs – take Two (2) 2 x 2 Photographs for each applicant according to the specifications on the visa instruction sheet.
Attend scheduled interview with all your unmarried children under 21. Bring supporting documents such as evidence of your relationship to your U.S. citizen fiancé (e), two photographs for each applicant, birth certificates and final divorce decree if any to the k1 visa interview.
If approved, the Consulate may need you to pick up the passport with the visa from the Consulate later.
Sealed Packet – Do Not Open
Consular Officer will give you your passport(s) containing the K-1 visa (K-2) and a sealed packet containing the civil documents you provided, plus other documents prepared by the U.S. Consulate. It is important that you do not open the sealed packet. Only the DHS immigration official should open this packet when you enter the United States.
K1 Visa Validity
Do not finish arrangements for travel to the United States, dispose of properties, or quit your job until the consulate delivers the passport(s) with the k 1/k2 visas to you. A k1 visa is generally valid for six months. You must travel and apply for admission to the United States within that six month window.
After admission on your k1 visa you have 90 days to get married to your U.S. citizen fiancé (e) or leave the United States. The DHS will issue an entry document (Form I-94) to you (the k1 fiancé(e)) valid for 90 days. If you marry within 90 days, you can can apply to adjust your status to that of a lawful permanent resident (green card holder) through the filing of a Form I-485.
has a valid marriage to a U.S. citizen (husband or wife) and who is
the beneficiary on Form I-130, Petition for Alien Relative, and
the beneficiary of an approved petition on Form I-129F, Petition for Alien Fiancé(e),
admission into the United States as a K3 non-immigrant to adjust to immigrant status (get a green card) while inside the United States. The K3 visa is different from the K1 visa in that the K1 alien is merely engaged to marry a U.S. Citizen and is seeking admission as a non-immigrant K1 to get married in the United States and adjust to immigrant status (green card).
Avoids long wait abroad. Prior to the passage of the LIFE Act the spouse of a U.S. citizen who resides abroad had to wait for the length of time it took to process an immigrant visa which could be a year or more in some cases.
Derivative K 4 status for children. The dependent children of the spouse of a U.S. citizen with an approved I-129F petition, who are accompanying or following to join their K 3 parent get admission on K 4 derivative status.
Admission for 2 years. K 3 non-immigrants are initially admitted for a 2 year period. Extensions of stay are available for K3’s whose adjustment of status is not complete.
Employment in the United States. K-3/K-4 aliens must apply to USCIS for a document evidencing employment authorization using Form I-765.
Termination of K3/K4 status. K3/K4 status automatically terminates 30 days after
(i) The denial or revocation of the Form I-130 petition;
(ii) The denial or revocation of the immigrant visa application (Forms DS-230) filed by the alien;
(iii) The denial or revocation of the alien’s application for adjustment of status (Form I-485) to that of lawful permanent residence;
(iv) The K-3 spouse’s divorce from the U.S. citizen (final judgment);
(v) The marriage of an alien in K-4 status.
The K-4 status also ends with the denial of any of these petitions or applications for a K-3 parent.
Nevertheless, a denial or revocation of a petition or application is not effective unless you have exhausted the administrative appeal applicable to your application or petition.
Attorney Gary D. Goodin, for Immigration Navigator