As we have discussed previously, adjustment of status (AOS) is the process of applying for a Green Card from inside the United States. It differs from other Green Card applications, which you apply for in your original country of residence.
There are different eligibility categories for AOS applications. In this article, we will look at which family members are eligible for AOS, as this is perhaps one of the more confusing categories.
Which Family Members are Eligible?
For a family member to be eligible, they must first have a relative who holds a Green Card or US citizenship. Without either, there is no initial legal route for the person to qualify for AOS.
Providing that is the case, a person’s relation to the US citizen or Legal Permanent Resident (LPR) dictates the type of application they submit. First, we have immediate family members who are all U.S. citizens– spouses, children (under 21), or parents.
Then, there are close (but slightly more distant) family members or family members who are Legal Permanent Residents. These are called family preference immigrants and fall into four categories. Note that family members of lawful permanent residents (LPRs) can only apply for preference categories.
The categories are:
· F1: unmarried sons and daughters (of US citizens) over 21;
· F2A: unmarried sons and daughters under 21 of LPRs;
· F2B: unmarried sons and daughters of LPRs, aged 21 and over;
· F3: married sons and daughters of US citizens;
· F4: brothers and sisters of US citizens.
We’ll discuss the immediate and family preference categories in a different post. The important thing to note here is that it’s only close family members (immediate family members) who are eligible for AOS straight away. On the other hand, some preference categories must wait for visa availability.
Applying for AOS
As mentioned, an AOS applicant must have a family member in the United States who is a citizen or LPR. Also, generally, the applicant must themselves be in the US legally or meet one of the exceptions. Residing in the United States legally could be with a valid nonimmigrant visa or as part of the Visa Waiver Program.
There are some situations in which those who entered the US unlawfully can apply for adjustment of status. It typically involves exceptions to the rule, which we will explore at a later post.
One of these exceptions is if you’re applying for AOS through marriage to a US citizen. In this case, it doesn’t matter if you overstay your initial visa, providing your original entry was legal and your petitioner is an immediate family member.
AOS applicants also need to make sure there’s a Green Card available for them. It isn’t an issue for immediate family members, as they are automatically issued. However, preference family members are put on a waiting list until one becomes available.
Providing everything so far is correct, the applicant needs to file Form I-485, the adjustment of status form. It requires a sponsor, which would be the family member with US citizenship or LPR status.
Understanding Dual Intent
With family members applying for AOS, there is (usually) little confusion about their reason for entering the United States. For example, immediate family members will have come over with the primary applicant, or parents or siblings might look for family reunification.
However, it is still worth discussing something called the dual intent doctrine. In short, the majority of nonimmigrant visas forbid the holder from adjusting their status to LPR. As part of the application, the person must state their intention to return to their home country, often showing proof of this.
Some visas, on the other hand, leave the option open for the holder to later adjust their status. These are dual intent visas. The most obvious are K visas, those for fiancés and spouses. But it also applies to H-1B, L-1 and O-1 visas, among others.
Providing you have the help of a qualified immigration attorney, this shouldn’t be something you need to worry about. However, it’s worth mentioning because it could impact the route a family member uses to initially enter the US before adjusting their status.
Final Thoughts on Family Members and AOS
The trickiest part about adjustment of status for family members is either knowing the correct category or knowing whether (and when) a Green Card is available. As such, it makes sense to get help from an immigration attorney who can guide you through everything.
So, if you have a family member who wants to adjust their immigrant status, get in touch with San Diego Immigration Law Office. We have helped numerous family member adjust their statuses and will be more than happy to work on your case.
Book an initial consultation so we can discuss your situation in more detail. From there, we can decide on a plan moving forward. Reach out to San Diego Immigration Law Office – we’re here for you, every step of the way.