The number one requirement for adjustment of status is that the immigrant is physically present inside the United States when you apply. They have to stay there until the process is complete unless they get travel authorization.
The general rule says that you have to be here legally. That means you would have some type of visa that’s currently valid. Either with an H-1B or an F1 student visa or something like that. In some limited circumstances, it can apply if you have come in with a tourist visa but that is a tricky situation.
Some people will recommend that those who have a tourist visa can travel into the United States, get married, and adjust their status. That’s something that used to be more common and it’s becoming less common. The government’s becoming more strict about it.
Part of the issue is that there are two different types of visas in the United States. There are immigrant visas and non-immigrant visas. Immigrant visas undergo consular processing while non-immigrant visas are things that are for a specific purpose when the immigrant is planning to come to the US. They have a reason to come to the US but their reason for coming to the US is only temporary.
Most non-immigrant visas have the requirement that the immigrant does not have immigrant intent. Immigrant intent means you’re planning on moving to the US and staying here forever.
If you come into the US and you have immigrant intent, it can be considered lying to the government if you’re using one of these non-immigrant visas. You’re saying, “I’m just here on vacation.” but in your mind, you’re thinking, “I’ve got a wedding dress in the back and I’m gonna come in, get married and then adjust my status.”
If you have that intention of staying at the time when you come into the US, then the US government considers that a form of lying or fraud, or misrepresentation to them because you used a non-immigrant visa to come in for an immigrant purpose.
That’s where we run into more trouble with some of the people who’ve come in with tourist visas and then want to adjust their status later on. There are some people who do qualify to adjust their status even if they came in with a non-immigrant visa. That’s what adjustment of status is for.
But the most important factor is what was your intention when you came into the US and whether it changed once you got here.
A case that would be okay to do adjustment of status that you wouldn’t have that problem is if you were an international student on an F1 student visa and you came into the US to get your master’s degree. At college, you met an American citizen, another student, or someone in the community. Eventually, you fell in love and decided to marry them.
You didn’t know that was going to happen when you came in as a student. Now, you do have immigrant intent but you didn’t at the time that you came in. That would be okay and that would be an example of where it would be appropriate to use adjustment of status.
It really has to do with what your intention was when you came and when and how that intention changed to make you decide that you met someone or you fell in love. Sometimes people are visiting and they realize they’re pregnant and will stay because they want to have this kid with their partner.
Different things can come up in life to change what you think and change your trajectory. That’s legal as long as you came in without the intent of staying. And then, something happened to change your mind once you were here.
Those things are important but it also matters what’s the government going to think about what your intention was. The US government might be suspicious. That might be true but how are they going to know that? If the US government thinks that you’re lying to them about that, they are able to deny your adjustment of status.
It can be really fact-specific and depend on your circumstances. If you have any sort of scenario where you’re thinking, “I might have a problem with this whole immigrant intent thing” or “I did come in recently with a tourist visa” or things like that you should discuss your specific scenario with the attorney that you’re having the consultation with to figure out what are the most relevant details in your case.
If the US government says, “We think you’re lying and you had the intention of staying here and it was fraud. You used this tourist visa to come and then, you’re just going to get married and we’re going to deny this case.” They can do that. They could look in to see if there’s additional evidence.
Sometimes when they start investigating, they’ll check your home country. If you sold your house, quit your job, sent social media messages to everybody saying, “Bye, I’m moving to the US forever!” then they have their evidence that they were right. That you did intend to move to the United States.
That would be a clear-cut case where it would be very dangerous for you to try to adjust status and you could end up having a very complex situation.
It is really important to understand that the US government does not have to find the smoking gun. It’s not like a criminal case where they have to prove that you did it or that you intended. Sometimes, they just say, “We don’t have proof but this was suspicious timing. We just don’t believe you and we’re going to deny this. We’re going to say you were lying and make you get a waiver to overcome that.”
It can really make your life miserable if that happens so we will use our professional judgment and let you know how risky your case is if you’re trying to adjust status and that there are potential issues there.
30/60/90 Day Rule
Most of the advice you’ll find about that online is actually outdated. That was previously a rule of thumb where if you tried to adjust your status, the US government would say, “If you do something like get married or try to start applying for things you show indications of any kind of activity like that within 30 days of coming into the US we’re going to assume you were lying to us about your intention when you came.”
If it was like 60 days, it could go either way. But if it’s more than 90 days, they’re going to assume that it’s probably fine. Sometimes people would give you advice online and they’d say things like, “Just come in with a tourist visa and stay at least 90 days and then you’re fine to adjust your status.”
Maybe that was true previously, however recent administrative changes in the US have actually changed that. They took out the rule altogether.
We generally recommend against that but if you have come to visit and honestly changed your mind once you got here, we can assess your risk factors about applying and just talk about your specific scenario and figure out try to help you come to decision about whether adjustment’s the right option for you or not considering all of those things.
Current Priority Date
Another requirement to be eligible for an adjustment of status is a current priority date. If you are married to a US citizen or you’re engaged to a US citizen, that part of this eligibility situation doesn’t really apply to you. You don’t have to worry about it.
But if you’re married to a green card holder who’s going to petition for you, that actually will make the case much more complicated because spouses of green card holders don’t automatically get to do their cases right away.
There’s actually an annual limit on the total number of spouses of green card holders that can also become green card holders. It can take a couple of extra years so, in order to adjust your status as the spouse of a green card holder, you would have to stay in the US continuously lawfully present and not trigger any immigrant intent issues by traveling or anything like that.
Another requirement for adjustment of status is that the immigrant is admissible, which means you don’t have any of the problems that exist in the laws that prevent people from getting a green card.
These apply to any of the marriage-based and even non-marriage-based immigration options in the US since they all require you to be admissible. Depending on the problem you have, there can be different ways to solve that.
You also are going to have to be prepared in most cases to stay put in the US, not leaving to travel internationally for at least three to five months after you file. When you file the application for adjustment, you’re filing multiple things at the same time, you can file multiple forms at the same time.
Some of the optional forms you can file are for temporary work authorization and temporary travel authorization so that you don’t get stuck in the US. The problem is it takes at least 90 days to actually get that.
For most people, it’s going to be important if they’re going to adjust their status that they’re prepared to stay here for three to five months. Supposedly it takes 90 days to get those things but sometimes the government gets backed up and there’s not much you can do other than make a complaint that it hasn’t arrived yet.
You can’t really force them to give it to you faster. Sometimes we do see that the weights for work permits and travel authorization stretch out a couple of months past that 90-day time frame. This is really only an issue for people who travel a ton for work. If you’re in and out internationally all the time, this might not be a good option for you.
There are sometimes ways to get emergency travel permits if you say you file your adjustment and then, you have a family tragedy abroad or something really serious.
But you can’t really depend on that and they won’t give it to you for things like vacations or business trips or other things like that. In general, people have to wait for three to five months approximately.