When an immigrant is married to a US Citizen, the person is sometimes eligible for a marriage-based adjustment of status (I485). However, many details need to be understood before you move forward with filing a case this complex without the proper guidance.
Are you qualified to adjust your status based on marriage?
– Sometimes people assume that just because their spouse is a citizen, they qualify to adjust status. This misconception could be very dangerous. First you need to make sure that you have an i-94, or a document indicating LAWFUL entry into the United States. If you jumped the border, you will generally not qualify to file for an adjustment of status. Some exceptions exist, but those exceptions relate to people who have had a prior application filed on their behalf, prior to April 30, 2001.
– Visa Waiver entrances can often qualify to adjust status, but it will depend on the jurisdiction.
Do you have an intent issue?
– Each and every immigration benefit for US immigration carries with it a very specific intent requirement. Did you enter on a student visa? Student visas carry a “non-immigrant intent” requirement. Non-immigrant intent means that you intend to return to your home country. If you enter as a student and immediately seek to adjust status to a green card holder, or a legal permanent resident, your intent requirement for the student visa is contradicted by your later action to apply for permanent residency in the United States. While you are permitted to have changed intent, you are not permitted to have fraudulent intent at the time of procuring any immigration benefit. Be careful because this is a landmine that can be very dangerous if not handled properly. If you have the slightest question, be safe and contact an attorney to screen you for intent violation issues.
It’s all about taxes
All immigration agencies care about how you are filing your taxes. This issue is discussed at length in this blog post here: The Important Role of Taxes in Immigration. Taxes are important. If you are unsure, do not go ahead and file. Have someone take a look at all your documents so that you can make modifications to your taxes if needed.
Your Relationship is Central
If it is a marriage-based adjustment, every relationship will be scrutinized, including every prior marriage, divorce, children, etc. If you have a “complex” relationship history or if you have certain ‘red flags’ about your present relationship, then your scrutiny may be heightened. For example, pay attention to whether you have a large age or experience gap from your spouse, whether you have language barriers, or cultural or religious differences that need to be explained. While differences are common, they could heighten relationship scrutiny.
Your prior immigration history will be examined
Keep in mind that immigration history does not disappear–it keeps on building. This means that if you or your spouse have had previous petitions filed, they could be re-examined. If you have obtained your citizenship based on a prior marriage and are now petitioning a new spouse, both of your marriages and all the petitions can be questioned.
Have you Misrepresented or committed fraud?
Misrepresentation can come up in a “simple” adjustment of status application based on violation of intent. However, if you have actually entered on a false visa, or passport, or have falsified information on any of your previous applications, you will likely need a misrepresentation or fraud waiver I-601. This is a serious matter, and not one you can afford to handle without a highly qualified attorney.
A good immigration attorney can help
Whether or not you have any of the above issues, but especially if you have them, you need a strong immigration attorney who will assist in PREVENTING the problems from occurring. One who will properly screen for these issues from the very beginning and attempt to cure whatever issues are possible before they become bigger.
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