Integrity Legal

11th Jun 2009

Adjustment of status is necessary after a beneficiary enters the USA and marries the K-1 visa petitioner. Adjustment of Status requires the filing of an I-485 application.

The Difference between “Adjustment of Status” and “Change of Status”

Many people going through the travails of Immigration procedure confuse “adjustment of status,” with “change of status.” In common vernacular the terms are similar, if not synonymous. However, in the context of US Immigration they have different meanings entirely.  If an alien adjusts status, this means that the alien changes from a non-immigrant visa category to an Immigrant visa category and is therefore accorded Lawful Permanent Residence (a Green Card). If a person present in the USA “changes status,” this means that they convert from one non-immigrant visa category to another.

K-1 Visas and Adjustment

As a hybrid visa, the K-1 allows an alien to enter the USA with the intent to marry an American and obtain a
Green Card. While the Green Card application is pending, the alien spouse is permitted to stay stateside. In fact, the alien spouse should not subsequently depart the US without first getting an advance parole travel document. Failure to obtain advance parole will very likely result in a K-1 visa conferee’s petition being canceled.

Provided the alien fiancee remains in status in the United States and the Adjustment of Status is approved, then lawful permanent residence will be conferred. This permanent residence will be conditional for 2 years. 3 months prior to the 2nd anniversary of adjustment, the couple should file for an I-751 removal of conditions of residence in the United States. After the removal of conditions occurs the alien will able to remain a resident unconditionally.

Appeals of Negative Adjustment of Status Decisions

In a situation where the adjustment of status from K-1 to Lawful Permanent Residence has not been approved, the decision can be appealed. Also appeals can be made pursuant to Section 586 of Public Law 106-429 if the appellant meets the requirements set forth in the rules.  Any appeal of an adverse adjustment ruling should be submitted to the Administrative Appeals Unit (AAU) for review. As a general rule, the applicant who has been denied adjustment must appeal within Thirty-Three days of the Immigration Judge’s ruling. Upon receipt of the appeal application and remittance of processing fee the appeal is forwarded to the Board of Immigration Appeals in the US Capital for review and adjudication.

(It should be noted that an appeal should not be confused with a waiver. In cases where a legal ground of inadmissibility is found to exist, the consular officer’s decision is not subject to appeal, but instead a waiver may be obtained.)

Nothing Contained herein should be viewed  as a substitute for legal advice from a licensed professional. Obligations inherent to an attorney-client relationship are not to be assumed to arise simply from reading this post due to the fact that no such relationship exists between the author and reader.

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