I-130 and AOS: Adjustment of status for spouse of a US citizen | Wife – Husband

A US Citizen can file for permanent residence for his or her alien spouse. If the spouse (Wife or Husband) entered the US with inspection (legally) the last time he/she entered, they can have the interview inside the United States at the local Immigration Service Center with jurisdiction over their county of residence.

The spouse (Wife or Husband) does not have to have been in the US legally the entire time, just prove that he/she entered legally with a passport/visa the last time and remained in the US even if the visa or I-94 expired already (overstay).

If doing an adjustment of status, the alien spouse can apply for employment authorization card (EAD) and sometimes can get a permit to travel outside the US while waiting for the interview. Consult with an immigration attorney before applying for the travel document.

Now, the problem with having a consular case for persons who have remained in the US in unlawful status for more than 180 days after the age of 18 and after April 1st 1997 and he/she leaves before the US permanent residence case is approved, he/she will be banned to return to the US for 3 years. If the person remained unlawfully in the US for a whole year or more, then he/she will be banned of returning to the US for 10 years.

With the Employment Authorization Card, the alien can get a Social Security Number and also apply for a drivers license as well, before the date of the interview.

One thing to note is that the US citizen petitioner needs to do an affidavit of support to show that the beneficiary will not become a public charge. One thing to note is that anyone doing an affidavit of support for a permanent resident case must be actually residing in the US at the time the affidavit of support is submitted and theoretically when the case is approved. Therefore the US Citizen residing in another country will need to move back to the US and live in the US in order to apply for his/her alien spouse. This is a requirement for all petitions of relative petitioners.

Section 245i

If the alien spouse entered the US without inspection (illegally, without passport and/or visa) as a general rule (except for Section 245i) he/she will have to return to the native country and have the interview at the US Embassy or Consulate there.

Under certain circumstances, a person can have the final interview in the US without leaving and thus, will not be banned for 3 or 10 years. This law is called Section 245i, which says that a person had an approvable immigrant petition or a Labor Certification (PERM) filed on his/her behalf before May 1st, 2001, he/she can pay a penalty of $1,000 in addition to the normal USCIS filing fees and have their interview here in the US without returning to their native country.

If you can avoid leaving the US in the first place, you cannot be banned from returning. The Law says if you are the spouse or single under 21 years old child of a person who qualifies for Section 245i and as such could theoretically accompanied the principal beneficiary on that case that was filed before May 1st, 2001, you can use Section 245i too, If the case in question was filed after January 14, 1998, you have to show that you were physically present on or about December 22, 2000 when the last extension to the Section 245i law was passed. If your case was filed on January 14, 1998, or earlier, you don’t have to show physical presence. There are a lot of technical details about this law, so you need to have a consultation with an immigration lawyer to see if you qualify for Section 245i.

I-751 Removal of Conditions on Green Card

USCIS is somewhat suspicious of marriage cases because they find more fraud than they find with other types of relative petitions. You cannot go out and get a brother or a mother, but you can go out and get a spouse next week. Therefore, these are additional rules, regulations and paperwork associated with spouse cases that you do not have with other relative petitions. Because of the potential fraud issues, USCIS wants to see evidence that it is a Bona Fide marriage and not just something to get permanent residence in the US. Another rule that couples need to be aware is that if on the day the case is approved the alien has been married less than 2 years, he/she will get a Conditional Resident Card, not the permanent one. That means that the conditional card expires in 2 years unless the alien files an I-751 petition to convert it to a Permanent Residence Card.

If you do not file the I-751 on time, within usually a couple of months before the expiration date, the USCIS will send you a Notice to Appear (NTA) putting you in removal (deportation) proceedings.

Sometimes the USCIS will accept the I-751 application late, but you have to show them a good reason why they should. You need to consult with an immigration attorney before the situation gets out of control.

Adopted Children

Before filing an I-130 petition for permanent residence for an adopted child, the US Citizen or Permanent Resident must meet the following two conditions:

  • The child must have been adopted before he/she was 16 years old
  • The petitioner must have had at least 2 years actual physical as well as legal custody of the adopted child.

This means that if you go to a foreign country to adopt a child, you have to somehow get the child to the US and get the 2 years actual physical custody here, unless you either are willing to go to the foreign country and get the 2 years actual custody or unless you have had at least 2 years actual custody of the child sometime in the past and you can prove it. The 2 year actual custody can be before you got the legal custody.

“Helping you to obtain the right visa, when you need it”

When you contact our firm for an initial consultation, we will take the time to educate and explain the immigration laws, regulations and the visa application procedures for your particular case. As a client, you will receive personal attention and work directly with an experienced attorney who will be able to answer any questions you have and keep you informed and aware of new developments as your case moves forward.

For all of your legal immigration needs, contact the immigration lawyers of Muston & Jack, P.C., at our San Francisco, San Jose or Pasadena California law offices to schedule an initial consultation.

  • Gabriel Jack helped us apply for an O-1 Visa, when we needed to change visa status and we got it! The documentation required for an O-1 visa is extensive but we managed to complete everything together with Gabriel in about 4 weeks. Gabriel is very professional and knows what is important and he is also easy to talk to and helpful. We are very pleased and will use Gabriel again should there be a need.
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  • We had previously shopped around for an immigration lawyer, but we went with Gabriel. He was very knowledgeable, friendly, and thorough. He was able to help us to prepare a very detailed interview packet, and we got our E2 visa at the end of the interview.
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