New York Lawyer's Legal Updates

5 Most Challenging Obstacles For Adjustment Of Status (And Their Solutions)

Author: green card lawyer Alena Shautsova

A Recent Success

We were able recently to persuade the US government that the couple who was sufficiently accused of a fraudulent marriage, in fact had a bona fide marriage. As a result, the non- citizen was finally granted adjustment of status and was cleared of all accusations. The key in solving this issue was preparation and documentation of couple’s life, including presentation of written testimony by credible witnesses.

Marriage visas

Marriage Immigration

Challenges covered herein:

Adjusting your Status when you are eligible seems simple at first glance. You read the directions and provide answers the questions correctly (and TRUE!), submit your supporting documents and wait. You wait, and wait, and wait and FINALLY you get a response with a yellow notice known as a "Request for more Evidence (RFE)"

"It’s over” (you think), there isn’t any evidence in my possession that I can submit additionally to overcome this RFE ...

Think again!

Outlined below will be solutions for the five (5) most difficult RFE’s to overcome as well as some good tips on how to avoid an RFE from these particular issues to begin with. Those RFEs will have similar language:

1. "You have said that you Entered Without Inspection (EWI) based on the evidence submitted it has been determined that you are ineligible to adjust your status at this time and/or you cannot prove your physical presence from the date specified as your entrance."

2. Bona Fide Marriage – "It has been alleged that your marriage to a US Citizen Spouse is fraudulent. Please submit additional evidence to prove your marriage bona fide."

3. "It has been determined that you are ineligible to adjust status based on the fact that you have accrued Unlawful Presence within the United States."

4. "Your Sponsor for form I-864 Affidavit of Support does not meet the income requirements to sponsor you."*
* This does not include any glitches in the USCIS system which are easily rectified by resubmitting tax returns and a short cover letter. Mostly these glitches result from individuals who make over $100,000 as it is believed that the software only reads the last 5 digits (although USCIS will never confirm this) if the person for example makes $110,000 you may receive an RFE because the software read $10,000 instead.

5. "Through further investigation it has been discovered that the applicant has a Prior Order of Deportation that was not disclosed."

Now, let’s see if the scary RFE can be overcome.

"The good lawyer is not the man who has an eye to every side and angle of contingency, and qualifies all his qualifications, but who throws himself on your part so heartily, that he can get you out of a scrape." - Ralph Waldo Emerson

Entered Without inspection

If a person entered without inspection, it is best that he/she consults with an attorney prior to submitting any documents to Immigration. The reason is that there are just few situations when a person without inspection and admission or parole can adjust his/her status. Those exceptions include:

1. Parole in Place – For immediate relatives of past or present US Military personnel, with a special application, a person can be paroled to the US without leaving the US. It is done in a USCIS office, and allows a person to solve the issue of illegal entry.

2. Very specific instances of applications under VAWA ( “Violence against Women’s Act”): the beneficiaries of self-petiion based on abuse may adjust their status even if they entered the US without inspection in most cases. Again, fact specific analysis is needed here.

3. Some applicants who entered the US without inspection and subsequently were granted asylum in the U.S., will not need to prove inpection and admission for the adjutsment o f status step.

4. Grandfathering exception: those who had petition for immigration benefits filed for them long time ago (prior to 1998 or prior to April 30, 2001 (in the latter case a proof of physical presence on December 21, 2000 is required)

5. Persons who are adjusting based on U, S or T status may proceed without proof of inspeciton or admission

Law Office of Alena Shautsova

Law Office of Alena Shautsova

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Now, most people do not fall into these categories and as such are unable to adjust their status without the help of a waiver. There are many waivers available to cure different issues when adjusting status and it can be confusing to choose the one suitable for one’s particular situation. The number one most applicable remedy for applicants that find themselves in this situation would be an I-601A Waiver. This will ensure that both issues that come from EWI, no inspection, and unlawful presence will be rectified.

Bona Fide Marriage

A Bona Fide Marriage can be difficult to prove on paper for some people, as a simple marriage certificate and signatures on I-130/ I-485 forms do not suffice when it comes to USCIS. The best practice in this situation is to submit as much evidence as possible, and if you really do not have any, start building the evidence! Every officer who is reviewing your case will take a different approach. Some are really satisfied with a detailed testimony, and some would want to see the backs of bank checks from the joint account… There was one instance when a couple came into my office after the husband was told he cannot adjust his status despite the fact that the couple had 2 common children. The problem was separate tax returns a tax advisor prepared for the husband and wife trying to minimize their tax burden. I explained to them, that “savings” on one side may result in large expenses on the other side when ICE will try to remove the husband… I explained to them the different pieces of evidence that USCIS looks for to prove a Bona Fide marriage as well as :

a. Pictures – in different places, happy faces, with other people in the pictures.

b. Insurance policies with a spouse listed as beneficiary – This is a very strong proof of Bona Fide Marriage as God forbid something happens, one of you is giving the benefits to your spouse and not your parents or siblings. Some employers provide insurance protections to their workers, so one may not need to purchase an additional policy and just needs to update the existing one.

c. Affidavits of family and friends – The more the merrier as they say,… it is highly unlikely that two people together can be such hermits that they never see any friends or family (although not unheard of). Affidavits from friends and family explaining how you were introduced, the way you treat one another, and how you speak about your spouse to those people can greatly improve the validity of your marriage in the eyes of a USCIS officer.

Unlawful presence

Similar to an EWI unlawful presence can be remedied in limited instances. The difference in this response is usually that you entered legally into the US but fell out of status. For an immediate relative, this can be remedied without the need for a waiver, as the waiver is pretty much automatically granted. For those who are adjusting through a permanent resident spouse, the waiver is necessary. For this, you must demonstrate extreme hardship to a US family member… The unlawful pretense is a frequent issue with adjustment based on an employment-based petition. The reason is that many do not realize that when they change the status many times, or change employers or overstay their visas, even if those issues are overlooked during the visa or status process, they will be revisited by the USCIS at the time of the adjustment. That is why the help of a competent attorney is needed from the start. Due to the complexity of issues and their variety, I would not be able to provide any possible suggestions here. I can just say simply: you have to see a good lawyer if you are charged with unlawful presence.

I-864 Affidavit of Support

Different issues with an affidavit of support form I-864 can be resolved simply by correcting mistakes on the form, resubmitting it, or finding a joint sponsor. A joint sponsor is needed in every case where the petitioner’s income falls below the minimum outlines in the I-864P form. Some people like to ask me if they can use assets to meet the requirements. Can they? Sure they can, then the only issue is that they should have so many assets that usually they still do not have enough… and assets have to be of a kind that can be liquidated within a year… so, trust me it is much easier to find a joint sponsor or even to use the non-citizen's earnings in some case to meet with threshold.

Now, an important reminder: the affidavit of support form is a contract between the sponsor, the immigrant, and the US government. It can be and will be in most cases enforced in court (State or Federal). It is an important document with important consequences, so the signer has to read it carefully before leaving his/her print on it.

Prior order of deportation

"Prior order of deportation" is a scary discovery by USCIS for the consequences may range from immediate removal proceedings or reinstatement of prior removal; accusations of fraud; and/or denial. The most common mistake people make is that they believe that what happened 20 years ago faded away… The USCIS has an advanced storage system of everything one did in terms of immigration pretty much ever and forever. It means that in virtually every case of adjustment by a person who had any issues at the border, had been placed in removal before or simply spent in the US a considerable amount of time, an FOIA request has to be placed prior to the filing of anything. This being said, do not be surprised if the FOIA request will return as “denied due to the subject being a fugitive” if, in fact, the person has an outstanding deportation/removal order. Now, the most common solution for the outstanding order of deportation would be a motion to reopen filed with the court which last had jurisdiction over the applicant’s case. If granted, it will allow the person to receive an adjustment of status.

The bottom line is that if the adjustment of status or a green card is important to you, you need to proceed with caution, with the help of an attorney. If you cannot afford a lawyer, try applying with the legal services that provide free legal aid and non-for-profit organizations. There is always a solution if one is looking for it!

07 August 2015
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