New York Lawyer's Legal Updates

Tips on how to get a successful I-485 adjustment of status

Author: Green Card Lawyer Alena Shautsova

NYC Immigration lawyer Alena Shautsova helps immigrants to determine their eligibility for adjustment of status in the United States, as well as to fight for their cases if their filings were rejected or denied. If a person is “adjustable” is a legal and factual issue. The law and regulations are changing practically daily and a person may be “adjustable” in one state of the United States, but not in the other. At times, a person will have to “go to court” to prove his/her eligibility for adjustment of status. It is an extremely complex area of the United States Immigration law, and our New York Immigration attorneys are here to help.

An I-485 form is used to register for or adjust to permanent residence status in the United States or “to receive a green card.” This form is one of the most expensive to file (currently it is $1225). It is important to verify your eligibility for adjustment of status before submitting it to USCIS: currently, USCIS adopted a new policy that if a person is denied certain immigration benefits he/she will be placed in removal proceedings. As such, erroneous submission for a green card may cause you to be placed in deportation proceedings. You have to make sure that the form’s edition is current. You also need to know which attachments are necessary at the time of the filing as the requirements are constantly changing. For example, with the implementation of the public charge rule, many I 485 must be accompanied by I 944 forms. A person who is filing for adjustment of status based on a grandfathering provision, also must attach certain supplements, and so on.

The first question to ask yourself is: do you have a basis for the green card?

If you desire to get a green card in the United States, it is almost for sure that you will need an I-485 to be filed with or after a petition that is served as a basis for your adjustment is approved. At times, you can do a concurrent filing. At times, the basis for the green card must be approved first (for example, I 360 Special Immigrant religious worker case).

To file I -485 based on family or employment petition, there has to be an immediately available immigrant visa number based on an approved immigrant petition in which case the relevant form (l-130/ I -140, etc. was filed previously and its priority date is current); or I -485 form will be filed with a completed family relative petition (I-130), SIJ based on an approved I 360 ( special immigrant juvenile petition), or SIM (special immigrant military petition).

The other common and more complex categories of immigrants eligible for filing an I-485 will be:

  • Spouse or child of an applicant who is also adjusting status based on an immigrant petition;
  • Fiancé of a US citizen;
  • Asylee or Refugee.

And the rarest cases for filing of I 485 form would be due to the nature of the eligibility requirements:

  • Cuban citizenship or nationality;
  • Continuous residence in the US since before January 1, 1972;
  • Applying to change the date on which your permanent residence began (Cuban nationals or spouses/unmarried children of Cuban nationals only);
  • Priority date not current but still valid.

Another important question to ask: do you need to prove a “legal” entry for your adjustment and do you have such proof?

Legal entry is not required for all types of adjustments. It is required however, for family and employment-based adjustment, unless you are using a grandfathering 245i exception or you are a VAWA applicant. A “legal” entry means that you can prove that you were inspected and admitted or inspected and paroled. Parole should be accepted as valid proof of your legibility to adjustment, but at times, USCIS argues it is not accepted. When “legal” entry is not needed? The most common categories for which “legal” entry is not required are VAWA and SIJ applicants. Asylum and refugee status holders, as well as U, T and S visa holders do not need to worry about it as well. In fact a person who was granted a U status while in the United States, was “admitted and inspected” when the U status was granted. This is an important point because such admission has legal consequences in case the U visa holder runs into immigration trouble down the line.

Watch this video regarding how to prove legal entry

U Visa Adjustment

Adjustment of U visa holders and their dependents and derivatives is a separate, very interesting topic. I would separate U visa dependents into two groups: those you qualified and had a U visa derivative status and those who did not.

In order to include a derivative, the relationship between the derivative and principal must have existed when the U principal filed and continue to exist until the petition is adjudicated. A derivative may adjust until the U principal adjusts.

But if someone could not become a derivative of a U visa applicant, he/she may still adjust. A form I-929 needs to be approved for a U visa family member in order for that family member to be able to adjust. This petition may be approved even after the U visa principal adjusts.  The statutory bases for it is INA 245(m)(3) ( the Immigration and Nationality Act ): upon the approval of an adjustment of status application for a principal U nonimmigrant, “the Secretary of Homeland Security may adjust the status or issue an immigrant visa to a spouse, a child, or in the case of an alien child, a parent who did not receive a [derivative U visa] under section 101(a)(15)(U)(ii)” of the INA. Here are the requirements for such an adjustment:

  1. The qualifying family member has never held U nonimmigrant status;
  2. The qualifying family relationship exists at the time of the U-1 principal's adjustment and continues to exist through the adjudication of the adjustment or issuance of the immigrant visa for the qualifying family member;
  3. The qualifying family member or the principal U-1 alien would suffer extreme hardship if the qualifying family member is not allowed to remain in or enter the United States; and
  4. The principal U-1 alien has adjusted status to that of a lawful permanent resident, has a pending application for adjustment of status, or is concurrently filing an application for adjustment of status.

The issue with this adjustment is that if a child ages out before USCIS adjudicates the application, the opportunity will be lost. As such, it is always best to get the U visa derivative status, rather than go straight for the adjustment when there may be an issue of aging-out.

As you see, adjustment procedures and qualifications for each separate basis vary and may be quiet complicated and at times, “surprising.”

Will you need a waiver with your adjustment of status application?

Another very common and important question is to determine if you may be inadmissible and if a waiver is available and necessary. For various basis of inadmissibility and available waivers, please visit: Immigration Hardship Waivers and Understanding Immigration Waivers.

Do you have the required documents to submit your adjustment of status application?

The required documents to be submitted will vary based on the path applicable/ chosen to adjust status and individual situation.

The usual initial evidence when submitting the I-485 should be as follows:

  • Evidence of eligibility (approved or pending, concurrently filed basis for the green card)
  • A copy of one’s Birth Certificate (if you do not have one, you must submit acceptable substitute evidence)
  • A copy of the passport page with biographical information
  • A copy of I 94 card or prof of admission or parole into the US. (If the card was stolen, lost or destroyed, an applicant shall file to restore it prior to or together with the adjustment package application). Nowadays, recent I 94 records are available online.
  • 2 Passport style photos
  • Medical examination report on form I-693 (under current regulations it may be submitted at a later date when there is a request for it or at the time of the interview)
  • Form I-864 affidavit of support when required (with attachments). Note, at times, I 864 is not required or a different form can be submitted such as I 864W, I 864A, etc.
  • Other required supplements of forms (discussed above)
  • Some applicants will be required to obtain police clearances if they are a member of a special class in addition to the fingerprints.
  • And last but not least the check made payable to USCIS for the correct filing fee amount.

After the I-485 is submitted and accepted, you should receive a USCIS receipt and a fingerprint appointment or appointment for biometrics.

Things to watch out for when filing your I-485:

  • You always want to make sure that you do not misrepresent any information when submitting these forms. This includes omission of information as harmless as where you lived even if it is as short as a few weeks or even days, you do not want to be rejected on a technicality and charged with fraud and sent to deportation proceedings.
  • If you have any criminal history or history or you answer YES to any of the questions asked in I-485, you have to consult with an attorney immediately.

The bottom line, is that usually an applicant has already too many worries in his/her life to worry and educate himself or herself on aspects of immigration, and it is a smarter choice to delegate this process to an experienced attorney. NYC Immigration lawyer Alena Shautsova based in Brooklyn, New York will help to determine your eligibility for adjustment status, consult you on possible issues, review previous denials and help you to prepare winning arguments to get your green card in the United States! Call to reserve your confidential consultation at 917-885-2261.

04 December 2013
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