ADJUSTMENT OF STATUS FOR SPOUSES OF U.S. CITIZENS

The Adjustment of Status Process is for Spouses Already in the U.S.

The Adjustment of Status process for spouses of United States citizens permits an application for permanent residence ("green card") to be processed without the alien spouse needing to return to their home country. The Adjustment of Status process, or AOS, is not open as an option to everyone, so you must know the rules.

A common case we see fairly often provides an example. A foreign student is here in Hawaii attending college or university, typically in F-1 status. He or she meets and falls in love with someone, a U.S. citizen, and they decide to marry. As long as the foreign student continues to be in valid status, and the rest of the statutory requirements are met, the couple may benefit from AOS, by doing their application and paperwork for permanent residence and remaining together in the U.S. while the process goes forward.

What are the statutory requirements? Essentially, the alien must have been lawfully inspected and admitted or paroled into the U.S.; the alien must correctly complete and file the appropriate application documents and pay the required fees; the alien must be eligible to receive an immigrant visa and be admissible for permanent residence; and there must be a visa available under the quota system.

The Adjustment of Status Process is Not for Everyone

Some statutory bars to AOS also exist. Crew members on ships or aircraft passing through the U.S. may not use the AOS process, nor can persons who have entered the U.S. illegally. Aliens who work without authorization or fail to maintain status may also encounter problems with AOS.

Some U.S. citizens have the incorrect notion that the only thing they need to do is to marry their alien fiancé and they automatically attain status and permission to stay in the U.S. Not so. The law requires the application be filed and approved before status is granted. There is nothing automatic involved. And you need to know that the immigration service holds discretionary power over the process. That means that even if you appear to qualify, the immigration service can withhold a positive decision and deny your application.

Be Alert to the Issue of Having a 'Preconceived Intent to Immigrate'

The most common scenario where the immigration service uses its discretionary power to deny an AOS application is where there is suspicion of visa abuse or fraud. We sometimes see cases where a couple decides to marry, but one partner is outside the U.S. If the couple has firmly decided to marry, and the foreign national partner or fiancé enters the U.S. on a nonimmigrant visa, such as a B1-B2 visitor’s visa, or uses the Visa Waiver Program to enter, and they then marry and file for AOS, the immigration service may determine that there is visa abuse, or even a fraudulent entry.

The reasoning is that if you know you’re going to get married and stay, then you are an immigrant and should use an immigrant visa when entering the U.S. In the immigration service’s view, nonimmigrant visas are for the purpose of temporary stays in the U.S., and should not be used to sidestep any part of the immigration process. If you knowingly use a nonimmigrant visa for a purpose it is not intended for (i.e., immigrating), you are breaking the rules. In fact, if your foreign fiancé enters on a nonimmigrant visa or visa waiver and you marry within 30 days, the immigration service will assume that there is visa abuse. Instead of “happily ever after” you may find yourselves defending a deportation action in Immigration Court.

Still, love can be a powerful emotion, and it can take even cynical lawyers by surprise. From time to time we see couples who encounter one another by chance at a conference, or at the beach while on vacation, or are introduced by friends. They meet, fall in love, and decide to marry – all in a matter of a few weeks. And now that they have found each other, they don’t want to be separated. Can they use the AOS process?

Maybe. But they should know that their case will be scrutinized for visa abuse, and their immigration interview may involve some searching questions related to what is known as “pre-conceived intent”. The immigration officers here in Honolulu are not entirely immune to romance, but they take their duty seriously and will do their best to uncover abuse if they think it is present.

The better approach is to know the rules and follow them carefully. Although the U.S. immigration system is complicated, it has a number of features that have been built in to favor family unity, and if you don’t abuse the system you are reasonably likely to find a way to get the visa or status you need.