It depends. If you entered the U.S. lawfully, even if you overstayed your visa and you are now married to a U.S. citizen, it is highly unlikely that you will have to the leave the USA to get your green card. If you are married to a lawful permanent resident and you have fallen out of status, more than likely, you will have to attend your immigrant interview abroad. If you entered the USA illegally, you won’t be able to adjust your status and you will have to do consular processing for your green card.

1. Inspected and Admitted or Paroled: This typically means that you arrived in the U.S. by a visa, or ESTA or you were given permission to land temporarily.

2. Visa Availability: An immigrant visa number must be immediately available to you at the time that you file your adjustment of status application.

3. Bona Fide Marriage: You must intend to establish a life with your U.S. citizen spouse. You cannot be getting married just for the green card.

4. Medical and Security Clearances: You must pass a medical examination where you have no Class A or Class B medical conditions. Some exceptions apply. You must also not pose a threat to the safety and security of the United States.

5. Unauthorized Employment: As the spouse of a U.S. citizen, you will be forgiven for working without authorization. If your spouse is a lawful permanent resident, you may not be forgiven and your adjustment of status application will likely be denied.

Attorney, Cheryl Fletcher

“Who can sponsor for adjustment of status?” is a great question to ask yourself before filing form I-485. Not every adjustment of status applicant will need a sponsor but for those who do, there are certain minimum income requirements. Each year the U.S. government publishes the federal poverty guidelines on form I-864P Poverty Guidelines for Affidavit of Support. The point of having a sponsor is to prevent the intending immigrant from relying on public benefits should he or she fall into poverty. Rather, the sponsor will be financially responsible for support in these circumstances.

Form I-864 Affidavit of Support is a contract between the sponsor and the U.S. government. Most family-based immigrants and some employment-based immigrants need this form.

A sponsor must be:

• at least 18 years of age
• a U.S. citizen, U.S. national or lawful permanent resident.
• domiciled in any of the 50 states, the District of Columbia, or any territory of possession of the United States
• petitioning for admission of the intending immigrant
• able to demonstrate the means to maintain an annual income equal to at least 125% (100% for active duty military members) of the federal poverty line

A sponsor does not have to be related to you. A sponsor’s income may be wages, business income, retirement benefits or any other type of lawfully obtained income. If the income is insufficient assets may be used.

If the petitioner’s income is insufficient, a joint sponsor can be used to assist in meeting the income requirements. The joint sponsor must meet the same eligibility requirements as the petitioner/sponsor and complete form I-864. If the additional sponsor is a member of the petitioner’s household, that person would be classified as a household member and would complete form I-864A.

A substitute sponsor is used when the petitioner passes away before all qualified family members have immigrated. A substitute sponsor must be related to you and be either your spouse, parent, mother-in-law, father-in law, sibling, child (at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild or the legal guardian.

My name is Cheryl Fletcher and I have been an immigration attorney since 2015. I have been assisting families successfully navigate the complex immigration process. After reading this article you should have a better understanding of who can sponsor an adjustment of status applicant.  An immigration attorney  is invaluable during this process. I would like the opportunity to work with you.

“Who qualifies for adjustment of status?” is a very broad question that covers a large group of people. An adjustment of status application allows you to obtain your green card in the U.S. without leaving to attend an interview at the U.S. embassy/consulate abroad. There are many different categories through which you may apply to obtain permanent residence. These include family-based, employment-based, special immigrant, refugee or asylum, human trafficking and crime victims, victims of abuse, registry, diversity lottery, and Cuban adjustment. United States Citizenship and Immigration Services’ (USCIS) form I-485 Application to Register Residence or Adjust Status is the correct application to use to apply for adjustment of status.

Although adjustment of status covers many immigrant visas categories, all adjustment of status applications have certain basic criteria that you should meet.

1. Physical presence: You must be physically present in the United States to apply for adjustment of status.
2. Immigrant petition: You must be the beneficiary of an immigrant petition. For some cases, such as VAWA and immediate relative filing, the immigrant petition may be filed simultaneously with the adjustment of status application. In other cases, you must wait until the immigrant petition is approved before you are eligible to file for adjustment of status.
3. Lawful entry: You must have been inspected and admitted or paroled into the U.S., with a few notable exceptions. If you are an asylee, VAWA self-petitioner, special immigrant juvenile, registry applicant, certain T nonimmigrants or U nonimmigrants, you do not have to prove that you had a lawful entry. If you were admitted after April 30, 2013, you may have been issued an electronic form I-94. The I-94 is proof that you were lawfully admitted and it shows your authorized period of stay. You can obtain the most recent copy of your I-94 from U.S. Customs and Border Protection.
4. Two passport-style photographs: You are required to submit two-passport style photographs of yourself, taken within the last six months.
5. Government-issued Identification: You should submit a copy of a government-issued identification that has your photograph. This can be your passport, driver’s license, national voter’s card or military identification. The document is acceptable, even if it is expired.
6. Birth certificate: You must submit a photocopy of your birth certificate, unless you are a refugee or asylee. USCIS only accepts long-form birth certificates, which lists at least one parent. If your birth certificate does not exist, you must prove why it is unavailable. Secondary evidence such as medical records, hospital or school records can be used to prove the facts of your birth. If your home country does not normally issue birth certificates, you should include a copy of the reciprocity table with your application, showing that birth certificates are unavailable in your home country. You do not need to submit secondary evidence relating to your birth if birth certificates are generally unavailable in your home country.

While it is important to understand “who qualifies for adjustment of status,” it is equally important to understand who does not qualify for adjustment of status. You should not apply for adjustment of status if you are “inadmissible” and you are not eligible for a waiver. Inadmissibility means you have done something in the past or you have certain medical issues that will prevent you from being approved for permanent residence. A waiver is “forgiveness” for certain past conduct and medical conditions. An approved waiver application allows you to adjust your status. For some types of issues, there is no waiver available and no matter how much of a good person you are, you simply won’t be able to get a green card.

There are several grounds under which you may be found to be inadmissible. Some of the most common ones are listed below. An I-601 waiver application covers most grounds of inadmissibility. However, there is also an I-192 waiver application for T or U visa applicants, where applicable, and an I-212 waiver application, if you have have previously been deported from the U.S. Furthermore, if your only issue is unlawful presence, you are physically located in the U.S. and you are will be applying for your green card from abroad, the appropriate waiver could be an I-601A. An experienced immigration attorney can help you decide on the appropriate waiver or even if you need a waiver for your particular case.

If you have certain diseases that will endanger public health, you are inadmissible and will need a approved I-601 waiver to obtain permanent residence. Some of the most common diseases are tuberculosis, gonorrhea, syphilis and leprosy. In addition, if you have any disease that the U.S Secretary of Health and Human Services deems communicable, you will need a waiver. A health-related waiver also covers vaccinations and mental-health disorders. If you are sincerely opposed to vaccinations based on religious beliefs or moral convictions, you may be eligible for a waiver. Furthermore, if you engage in harmful behavior based on a metal disorder, you should apply for a waiver.

If you have been unlawfully present in the U.S. for longer than 180 days but less than one year, you are subject to a 3-year bar. If unlawfully present for more than one year, you are subject to a 10-year bar. Immediate relatives of U.S. citizens, VAWA applicants, certain physicians and their accompanying spouse and children, G-4 and Nato-6 employees and their family members, special immigrant juveniles and certain military members and their spouse and children are exempt from the unlawful presence bar. If you are not exempt and have violated the unlawful presence rule, you may be eligible for an I-601 waiver or an I-601A provisional waiver.

There is no waiver available for working without authorization. However, certain categories of people are exempt from this rule. Immediate relatives of U.S. citizens, VAWA applicants, certain physicians and their accompanying spouse and children, G-4 and Nato-6 employees and their family members, special immigrant juveniles and certain military members and their spouse and children can work without authorization and still be eligible for a green card. If you do not fall into one of those groups, you are inadmissible and your green card application will likely be denied.

Most adjustment of status applicants are required to prove that they are not likely to rely on the U.S. government for public benefits. For family-based applications an I-864 Affidavit of Support form is required. This form is a contract between your visa petitioner and the U.S government. The petitioner must prove that they will financially support you so that you do not fall into poverty. If the petitioner’s income does not meet the standard in the annual federal poverty guidelines they can ask a joint sponsor or an household member to join the petition.

Employment-based petitioners are not required to complete an I-864 form, unless they have sponsored a relative or the relative owns 5% or more of the sponsoring entity.

VAWA applicants and intending immigrants who have earned 40 qualifying credits of work credits are exempt from filing an I-864 form. Similarly, any immigrant who will attain U.S. citizenship upon admission, is exempt.

Receiving public benefits before or while your green card application is pending is a fact that the immigration officer will take into consideration when deciding whether to approve your application. You will not automatically be denied if you took public benefits. However, if it is more likely than not that you will become a public charge, then the application will likely be denied. A skillful attorney can argue your position well.

If you lied, tendered false documents or committed any other type of fraud or misrepresentation to obtain an immigration benefit, you may need to apply for a fraud waiver. This can be done on form I-601.

You may have falsely claimed to be a US citizen in oral interviews or written applications. Special immigrant juveniles and registry applicants are exempt from this rule. Generally, there is no waiver available for false claim to U.S. citizenship for most applicants. However, refugees and asylees who are seeking adjustment of status may be granted a waiver. As of September 30, 1996, if you made a false claim to U.S citizenship, you are inadmissible. You may be eligible for a waiver under the fraud and misrepresentation ground, if the false claim was made before the stated date.

 If you entered the United States as a J-1 or J-2 nonimmigrant exchange visitor and you are subject to the 2-year foreign residence requirement, you should not apply for adjustment of status. You should return to your home country for 2-years, or obtain a waiver recommendation letter from the U.S. Department of State. Not all exchange visitors are subject to the 2-year foreign residence requirement. Some are automatically granted a waiver at the time that they are approved for a visa.

The criminal grounds under which you may be excluded from getting a green card are vast. There is no waiver available for drug possession and distribution offenses, except simple possession of 30 grams or less of marijuana. There is a waiver available for certain crimes involving moral turpitude such as theft offenses, multiple convictions, and prostitution. Committing murder or torture prevents you from ever getting a green card.

Alien smugglers are inadmissible but there is a waiver available under certain circumstances. If you smuggled or assisted with smuggling anyone other than your spouse, parent, son, or daughter to the United States, you will not be approved for a waiver.

Section 245(i) of the Immigration and Nationality Act allows certain individuals who are present in the United States who would not normally qualify to apply for adjustment of status in the United States to obtain lawful permanent residence (get a Green Card) regardless of:

• The manner they entered the United States;
• Working in the United States without authorization; or
• Failing to continuously maintain lawful status since entry.

If you are the beneficiary of a labor certification or immigrant visa petition, filed on or before April 30, 2001, you could be 245(i) eligible. In most cases you will have to pay a $1,000 fine in addition to the filing fee.

If you entered without inspection and you were not admitted or paroled, you will most likely be unable to obtain your green card through adjustment of status. This rule does not apply to VAWA applicants, asylees and refugees. If you are the beneficiary of a family-based petition and this is your situation, you may still be able to obtain your green card but you will have to apply through consular processing.

 A previous deportation or removal order that has been executed makes you inadmissible. If you were removed as an arriving alien or through expedited removal, you need consent to reapply, within 5 years. If you were ordered removed, other than as an arriving alien, you need consent to reapply within 10 years and if you were removed more than once, the waiting period is 20 years. If you were ordered removed but never left the U.S. you may be able to reopen your removal case and adjust your status. An I-212 application can be submitted before the requisite amount of time and if you are successful, then you can obtain your green card without waiting the full period.

Let us look at the question “who qualifies for adjustment of status,” regarding Nazis. If you are or have been a communist or a member of a totalitarian party, whether in the U.S. or in a foreign country, you are inadmissible. There is no waiver available for most people. However, your application may be approved for humanitarian purposes or to assure family unity. On the contrary, it will not be approved if you pose a threat to the security of the United States or it goes against the public interest.

My name is Cheryl Fletcher and I have been an immigration attorney since 2015. I have helped hundreds of immigrants from many different countries successfully adjust their status. Your search may have started with the simple question: “who qualifies for adjustment of status” but after reading this article you may see that your case could be more complicated. I would like the opportunity to hear about your case and share with you the best legal strategy to help you achieve you goals. Feel free to book a consultation with me. You’ll be glad you did.