Part 2: Adjustment of status
Please see the flowchart on our website, which provides the general steps involved with this type of filing. [Link-AOS Flowchart]. Part 2 of this series will provide further details on the steps and important items to consider when filing the cases with USCIS.
If your Foreign National Spouse is immediately eligible to file their green card they can file the “adjustment of status package” which will typically include:
- I-130, Petition for Alien Relative
- I-485, Application to Register Permanent Residence or Adjust Status
- I-765, Application for Employment Authorization
- I-131, Application for Travel Document
- I-864, Affidavit of Support
- I-944, Declaration of Self-Sufficiency (currently not required as a result of a court ruling, but this may be required in the future.)
As discussed in Part 1 [Link- Part 1], if your spouse is not immediately eligible, you can still file the I-130 petition with USCIS. The remaining applications will be filed when your spouse is eligible for filing for his/her green card.
I-130, Petition for Alien Relative
The I-130 is the immigrant petition field to establish your bona fide relationship with your spouse. Thus, when you file the Form I-130, it is essential to provide documentation showing that you are legally married (in the US or outside the US), all prior marriages have been terminated, and that you are in a legitimate marriage.
When USCIS evaluates the legitimacy of your relationship, it will use three main criteria, namely cohabitation, communication, and comingling of finances. The following are examples used to establish each criterion:
- Cohabitation – Joint leases, joint mortgages, joint utility bills, joint insurance policies, etc.
- Communication – Chat history, e-mails, call records, etc.
- Comingling of finances – Joint bank accounts, joint credit cards, joint investments, etc.
It is understandable that if you are recently married, you might not have documentation for all these categories. If this is the case, you can still get your I-130 approved. However, it will be important to think outside the box to show that your relationship is legitimate. Examples of this type of documentation will need to be discussed on a case by case basis with your attorney.
After the I-130 is filed, you and your spouse will need to attend an interview at the local Application Support Center (ASC). It will typically take 6 – 8 months to receive the appointment. During this interview, the Officer will ask you questions from the submitted form and regarding your relationship. Some sample questions include:
- What is your address?
- When did you last enter the US?
- When did you meet?
- How often did you talk to each other?
- When and how did he propose?
- Where was the wedding?
- Have you met your spouse’s family?
Some of the questions might get personal, but you will need to answer honestly to each question asked by the Officer.
I-485, Application to Register Permanent Residence or Adjust Status
The I-485 is the actual green card application, meaning it is the form filed by your spouse to change from his/her non-immigrant status to a US permanent (or conditional) resident. If your spouse is immediately eligible to adjust his/her status, they can file this concurrently with the I-130.
If your spouse is not immediately eligible, they will need to wait for the priority date to become current before filing this and the subsequent applications. Please note that the I-130 does not have to be approved to file the I-485. For example, if you file the I-130 and the priority date becomes current the next month, your spouse can file the I-485 based on the pending I-130.
Because the bona fide marriage evidence is sent with the I-130, the documents needed for this application pertain to the Foreign National Spouse’s identity and maintenance of status while in the US. If your spouse has a gap in his/her status it will be important to disclose this to your attorney prior to filing the I-485 application, particularly if you are filing the I-130 as a Legal Permanent Resident. If you are filing as a US Citizen gaps in your spouse’s status or overstaying a visa will generally be forgiven.
After the I-485 is filed with USCIS, your spouse can remain in the US while the I-485 is pending. Although, we generally advise that the Foreign National Spouse maintain his/her non-immigrant status during this time. This is typically recommended as a precaution. If USCIS were to deny the I-485 for any reason, and your spouse did not maintain his or her non-immigrant status, he/she might be required to leave the US. However, if they maintained their non-immigrant status, this would give you more time to reevaluate the situation and possibly refile or appeal.
I-765, Application for Employment Authorization & I-131, Application for Travel Document
The I-765 and I-131 are the applications that give the Foreign National Spouse the ability to work and travel while the I-485 is pending. Even if your spouse will be maintaining his/her non-immigrant status, it is still recommended to file these applications with the I-485 as a backup.
The processing time for these applications will typically vary from 4 – 6 months and they are approved at or around the same time. After the approval, USCIS will send the Foreign National Spouse an Employment Authorization Card (EAD card). This is also known as a “combo card” as it will also include text stating “Serves as I-512 Advanced Parole,” which will be used for international travel.
If your spouse is wanting to travel while the I-485 is pending, he/she MUST obtain the combo card before leaving the US. If he/she travels outside the US before the I-131 is approved, USCIS will assume that the I-485 is abandoned and deny the case.
In some cases, you could qualify for an expedite request.
I-864, Affidavit of Support
The Affidavit of support is filed to establish your ability to support your spouse financially. By filing this form, you are declaring to USCIS your annual income, assets (only if applicable) and household size. USCIS will use the HHS Poverty guideline (I-864P) to evaluate your ability to support your spouse.
You can find the HHS poverty guideline chart on the USCIS website. The chart provides the poverty guideline as per your household size. Your household size will include yourself, spouse, children, stepchildren, and any dependents listed on your tax return. Unless you are in the US armed forces, you will need to have an income of at least the amount listed under the 125% column.
If you do not have an income of this amount, you still have options. You will need to discuss these options with your attorney to determine which is the best option for your case.
You can use your assets to supplement your income
If you have assets, including real estate, stocks, bonds, or any asset that can be converted into cash within one year without considerable financial loss to you, the owner, you can use these to supplement your lack of income. However, the value of your assets will need to be five times the difference between your household income and the poverty guideline. Unless you are a US citizen, then it would need to be three times the difference.
For example, if the 125% poverty guideline for your household size is $30,000, but you make $20,000 per year. The difference between the poverty guideline and your income is $10,000. The total value of your assets must be equivalent to $50,000 if you are a Permanent Resident or $30,000 if you are a US citizen.
You can use the income of your foreign national spouse.
If your spouse is currently working, it is possible to use their income to meet the poverty guideline. However, the source of said income must be the same after he/she becomes a permanent resident.
You can use a joint sponsor.
A joint sponsor is a family member or friend that is willing to also sponsor your Foreign National Spouse. By being a joint sponsor, the person must be willing to financially support your spouse if needed. The individual will also need to complete and submit an I-864 form and submit to USCIS along with the I-485.
To qualify as a joint sponsor, the person must meet the following requirements
- Must be 18 years of age;
- Reside in the US or its territories;
- Willing to financially support the Foreign National Spouse until he/she becomes a US citizen or is credited with 40 quarters of work (10 years); and
- Meet the poverty guideline for his/her household size.
However, within the recent year, USCIS implemented the public charge rule. For more on this rule, please see our website: https://www.patellegal.com/the-dawn-of-a-new-era-becoming-familiar-with-the-new-public-charge-rule/.
Because of this change, USCIS has become stricter on cases filed using joint sponsors. If a joint sponsor is used, it is possible for USCIS to question if the sponsor will actually provide financial support.
However, as a result of a recent Court ruling, the public charge rule is not currently in effect, although it is possible it may go back into effect at some point in the future. See https://www.patellegal.com/ny-district-court-issues-nationwide-injunction-and-temporary-stay-on-trumps-unlawful-public-charge-rule/
Be sure you check the USCIS website for updates on the I-944 before filing the I-485.
You can use the income from any working family members or dependents living in your household.
For this option, you can only use the income of the relatives or dependents living in your household or any dependent listed on your most recent tax return. The individual must also be willing to complete and sign the I-864A and be financially liable for the foreign national spouse.
You can be exempt from filing the I-864 altogether.
If your spouse is in the US and has been working for many years, it is possible that you could be exempt from the Affidavit of support if he/she has 40 qualifying quarters (aka Social security credits). You can contact the social security administration to obtain this information.
If your spouse is close to 40 hours, you can also use the credits you have gained during your marriage.
Again, these are some of the potential options. It is important to discuss these options with your attorney prior to filing the case.
I-944, Declaration of Self-Sufficiency
This is a new form that came to be because of the new Public Charge rule, which went into effect in February 2020. The purpose of this form is for USCIS to evaluate your assets, medical insurance, financial status, education, skills, etc. to see if your Foreign National Spouse is likely to become a public charge.
This is problematic because it will be at the discretion of the adjudicating officer to determine the likelihood of your spouse becoming a public charge.
Within this form, you will provide tax return information for everybody within your household, medical insurance information, assets owned by you and your Foreign National Spouse, all debts (e.g. car loans, mortgages, education loans, Etc.) credit score, and much more.
If your spouse does not have a credit score you will still need to provide documentation of this fact. You can also provide documentation of continuously paid bills as an alternative if they do not have a credit score.
Obtaining the Green Card
When USCIS approves your I-130 petition and I-485 application, they will mail the green card to your spouse. If you have been married for less than 2 years, your spouse will receive a conditional green card. This green card will only be valid for 2 years.
In order for your spouse to obtain the 10-year green card, you will need to remove the conditions. To do this, you will need to file an I-751 with USCIS within 90 days prior to the green card expiring.
If you and your spouse have been married for over 2 years, he/she will receive a 10-year green card. No additional application will need to be filed (excluding a renewal application near the end of the 10 years).
If you have any further questions regarding the adjustment of status process, please do not hesitate to contact us. To book a consultation, please contact our office at 972-650-6848 or email@example.com.