published September 7, 2015
There are dozens and dozens of factors that go into an individual’s eligibility for a U.S. lawful permanent residence, or green card. For individuals present in the U.S., the following are the top 5 issues impacting eligibility for “adjustment of status” and undergoing final processing in the U.S.:
1) Immigration Status: Ideally, an individual will have maintained lawful nonimmigrant, or temporary status in the U.S., and from a maintained immigration status, an individual is in an ideal position to pursue U.S. resident status, that is assuming they have the requisite family or employment relationship/sponsor. For those without lawful immigration status, the options may be far fewer, and especially if the individual (or their parent) had never been the subject of a previous family based or work related immigration or labor based filing submitted prior to April 30, 2001 (or in some cases, January 14, 1998) in order to qualify for Section 245(i) eligibility – see below. Most folks who have entered on some sort of visa, but overstayed or violated their status are limited to adjusting their status based on a bona fide marriage to a U.S. citizen (or future citizen) or who are the under 21 year old child of a U.S. citizen, or the parent of an adult, over 21 year old, U.S. citizen. Those covered under Section 245(i) have far greater options.
2) Section 245(i) of the Immigration and Nationality Act: It was enacted to benefit undocumented individuals in the U.S. who have the requisite family or employment relationship, but were unable to adjust status in the U.S. because of their violation of their immigration status. Instead of traveling back to a U.S. consular post in their home country, those covered by section 245(i), are eligible to pay a penalty of $1,000.00 and process their resident status here. To benefit from this section of law, an individual or in some cases, their parent, was previously the subject of a family based visa petition, or employment based immigration filing – and depending on the circumstances, the filing had to be submitted either before April 30, 2001 or January 14, 1998. Importantly, 245(i) is generally not needed for visa overstays seeking to adjust status as a) the spouse of a U.S. citizen, b) the under 21 year old child of a U.S. citizen, OR c) the parent of an adult U.S. citizen.
3) Entry with inspection or not. First and foremost, those who entered the U.S. without having been inspected (e.g. snuck through the border), with few exceptions, will generally need a qualifying Section 245(i) petition to be eligible to adjust status in the U.S., and no matter the petitioning relative or employer. In most circumstances, if you did not enter the U.S. with inspection and do not have 245(i) eligibility, you will need to return to your home country and appear before a U.S. consular post there for immigrant visa processing. The only “entry without inspection” individuals availing of consular processing these days are generally the spouses of U.S. citizens who are the approved beneficiaries of a visa petition AND a provisional waiver of inadmissibility, with the latter excusing the applicant’s unlawful presence in the U.S. The waiver process, although not simple, is a viable option for many, assuming they establish eligibility on a variety of critical points.
4) Criminal Offenses: In sum, a single misdemeanor, or DUI conviction will generally not have a meaningful, negative impact on an applicant’s eligibility. Even a second or third DUI conviction may be without significant consequence. However, when it comes to a felony conviction, and where the crime is considered as “involving moral turpitude”, the applicant will face significant obstacles. But even an individual with such a criminal conviction may still be considered for residence if they satisfy the requirements for a waiver of inadmissibility, where the offense is excused because a particular family member, such as a U.S. citizen spouse, will suffer extraordinary hardships in the event the application is denied. In some cases, individuals with multiple felony convictions, a single drug related conviction, or multiple misdemeanor convictions may find themselves without realistic options for adjusting status in the U.S. In other cases, individuals with multiple felony or misdemeanor convictions may still find a way to qualify, albeit with a greater degree of difficulty.
5) Applying as the Spouse of a U.S. Citizen: As stated, most visa overstays are eligible to adjust their status based on marriage to a U.S. citizen, but only if they meet all the applicable legal requirements, including that the marriage at issue is a genuine, bona fide one – and not one entered into for the purpose of facilitating an immigration benefit. Most notably, if it is detected during the course of the process that the couple does not or have not resided together, a big red flag is raised, and immigration authorities will generally challenge the application. Additionally if an applicant had attempted to apply for adjustment of status based on a previous marriage, but was not successful, he/she can expect to be questioned thoroughly about the earlier marriage if a second application is advanced based on a new marriage. In other words, the bona fides, or lack thereof, of the first marriage may loom large over decision making when it comes to the new application.
When it comes to navigating the adjustment of status process or merely to be able to make an informed decision about whether, or how, to proceed, it is advisable that prospective applicants consult with a knowledgeable, seasoned attorney with a track record of success and who practices exclusively immigration law.
PUBLISHED September 7, 2015– “IMMIGRATION LAW FORUM” Copyright © 2015, By Law Offices of Richard Hanus, Chicago, Illinois