Adjustment of Status as a Form of Immigration Relief
By Reuben Seguritan
Adjustment of Status is the process of becoming a United States lawful permanent resident (LPR) or more commonly known as getting a green card. The applicant files form I-485 with the USCIS while in the United States. There are many ways that a person can apply for a green card. The most common way is the family-based green card.
The spouse, parent, or child of the applicant who is a US citizen may file the I-130, Petition for Alien Relative for the applicant. These petitioners are known as immediate relatives. However, in order for the child of the I-130 petitioner to be considered an immediate relative, the child must be unmarried and below 21 years of age. An LPR may also file for his spouse or unmarried child. After the I-130 is approved, the applicant can then file the I-485. The applicant may also file the I-485 concurrently with the I-130 petition.
There are certain eligibility requirements which the applicant must meet when filing his I-485 such as physical presence in the US, lawful entry, and immigrant visa availability.
An applicant may also be eligible to file the I-485 if he qualifies under INA Section 245(i). This Section allows undocumented immigrants to file I-485 even if they did not enter the US lawfully or if they otherwise violated their immigration status. This section requires the applicant to be the beneficiary of a visa petition or labor certification that was submitted to either the USCIS or the Department of Labor on or before April 30, 2001, and he can prove that he was physically present in the US on December 21, 2000. Proof of physical presence on December 21, 2001, is not required if it was filed on or before January 14, 1998. Any such visa petition or labor certification in favor of the applicant must have either been approved or been approvable when filed. This means that the petition was valid and not fraudulent and that there was a genuine relationship when the petition was filed.
When the applicant files the I-485, he may also file I-765, Application for Employment Authorization so that he can work while the I-485 is pending. However, there is no certainty that the USCIS will approve the I-485 application. The granting of the I-485 is always discretionary. Applicants are advised to ensure that all required documents, such as the proof of marriage to the US citizen or LPR spouse, or the birth certificate to show that the petitioner is the parent of the child applicant, are clear and true.
An applicant can also file the I-485 while he is in removal proceedings. Removal proceedings is the procedure of the government to remove aliens who are illegally in the United States or who are otherwise inadmissible to the US. However, since the applicant is already in removal proceedings, the immigration judge will receive the I-485 application and not the USCIS. This will form part of the defense of the applicant to being removed from the US. The immigration judge will only accept the I-485 application after the USCIS has processed and approved the I-130. The USCIS will only approve the I-130 after evaluating the petitioner’s proof of US citizenship or LPR status and proof of the petitioner and applicant’s relationship.
The I-485 applicant during removal proceedings must show by clear and convincing evidence that he is eligible to adjust status because of his relationship to the I-130 petitioner. Clear and convincing evidence is showing that it is more likely than not that what the applicant is saying is true and real. The evidence of the applicant must outweigh the evidence of the government so that the judge will be convinced that the application for permanent residence should be granted. If he is the spouse of the petitioner, he must prove by clear and convincing evidence to the immigration judge that their marriage is genuine and not to gain a green card. Immigration judges are critical if the applicant and petitioner got married after the removal proceedings began. Hence, they must show all of the evidence they have to show that the relationship is legitimate and they want to build a life together as a married couple in the US.