All family based green card processes start with an initial petition identified as the I-130 filed with USCIS. This Petition is filed with the required filing fee and evidence proving the relationship between the Petitioner and the Beneficiary. Evidence of a relationship can be as little as birth certificates demonstrating the relationship between a parent and child, to more substantial evidence such as documents demonstrating that a married couple lives together sharing financial obligations and benefits. Once the I-130 is approved, the applicant will either apply for the green card in the U.S. or will go to a U.S. Consulate abroad. This post addresses obtaining the green card through adjustment of status. You can click here to find out more about Consular Processing. (when you want a green card while not in the U.S.)
Can I apply for my green card without having to leave the United States?
What is Adjustment of Status?
The process in applying for a Green Card while being present in the United States throughout the whole process is known as the Adjustment of Status Process. It is important to understand that this process is limited to certain individuals that fall under a certain set of circumstances defined by Immigration Law. If the Beneficiary qualifies for Adjustment of Status, either the application I-485 is filed after the I-130 is approved and when the priority date is current or if the I-130 is based on an Immediate Family member or there is no back log or waiting period for a specific family member under the Family Preference categories, the I-130 petition can be filed with together the I-485 before USCIS.
One manner in qualifying for the Adjustment of Status process depends on whether there was a past I-130 petition or a Labor Certification based on an employment based process filed for the Beneficiary or the parents of the Beneficiary before one of two set dates established by Immigration Law. The original date that an I-130 petition or Labor Certification had to be filed by to qualify for Adjustment of Status was January 15, 1998. The date was later extended to April 30, 2001 with the additional requirement that the beneficiary of the I-130 or Labor Certification must prove physical presence in the United States on or around December 21, 2000. Meeting the filing date requirement and additionally meeting the presence requirements for the 2001 filing date will allow the beneficiary to Adjust Status in the United States whether based on the original I-130 petition or a later petition filed by an immediate family member. If the original I-130 is still waiting on the priority date being current and the Beneficiary marries a USC while waiting for the first I-130 or has a child that eventually turns 21 years of age, the Beneficiary can forego waiting for the priority date becoming current and apply for the Green Card by having the new spouse or adult son or daughter file a new I-130 Petition together with an I-485 together with evidence of the first petition filing with USCIS to essentially accelerate the process.
The other manner in qualifying for the Adjustment of Status Process depends on the relationship of the petitioning family member and the Beneficiary’s manner of entry into the United States. Pursuant to Immigration Law, a Beneficiary that was lawfully admitted or paroled into the United States at a port of entry that is petitioned by an Immediate Family member may also file for Adjustment of Status filing both the I-130 petition and I-1485 application together. There are no physical presence requirements as long as the Beneficiary can prove the legal admission into the United States. Ideally, a Beneficiary wants to provide a copy of an entry stamp on a passport, a copy of a document identified as an I-94 formerly issued at the time of entry or a copy of the I-94 that is now maintained on the Customs and Border Patrol website found here. Legal admission maybe proven in other ways, but the passport stamp and I-94 are the most ideal forms of evidence to prove legal admission.
It is highly recommended that you consult with one of our experienced attorneys to advise you whether the past Family based or Employment based petition qualifies you for the Adjustment of Status Process or whether your entry into the United States can be deemed a legal admission or parole to qualify you for the Adjustment of Status process.
If you are not eligible to adjust status or you are outside of the U.S., you will have to use Consular Processing. You can find out more about that by clicking here.
In this family based series of immigration blog posts you can find information on the following:
- Can my Family Members file a Green Card Application for Me? Can I get a Green Card through Family?
- How long will I have to Wait for My Green Card? What is the Visa Bulletin?
- How do I Begin a Family Based Green Card Case? What Do I have to Do to Get a Green Card Through Family? Adjustment of Status
- How do I Begin a Family Based Green Card Case? What Do I have to Do to Get a Green Card Through Family? Consular Processing
- What happens to child who turns 21 years old while waiting for a priority date? My Child is Waiting for a Green Card – What if my Child turns 21?
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