Adjustment of Status
What is Adjustment of Status?
For the purposes of a K1 visa holder, AOS is the process by which an application is made to the United States Customs and Immigration Service (USCIS) to adjust status from that of a K1 fiancée of a US Citizen to that of a Legal Permanent Resident of the United States. It is sometimes referred to as a Green Card Application. The beneficiary during the I-129F/K1 visa process becomes the AOS Applicant and the sponsor of the I-129F becomes the Petitioning Sponsor.
Before applying for adjustment of status, there are three aspects which the alien must understand.
- The alien who entered the United States must have been inspected, admitted, or paroled into the United States. An alien who entered the United States without inspection (sneaking across the border), is not eligible for adjustment and must pursue visa processing at a consulate, even if his is an "immediate relative" of a U.S. citizen.
- Any violation of U.S. immigration status in the alien’s history, including a brief overstay or unauthorized employment, may disqualify most aliens (not "immediate relatives" of U.S. Citizens and some employment-based immigrations) from adjusting status.
- Travel outside the United States without advance parole or existing permission may cancel a pending adjustment of status application and may prevent the alien from reentering the United States.
In order to apply for an adjustment of status, an immigrant visa must be immediately available to the alien when his or her adjustment application is filed. This is not a problem in the case of a K-1 or K-3 Visa holders because an unlimited number of "green cards" (permanent residence cards) can be issued to immigrants who are immediate relatives, i.e. spouses and unmarried children under the age of 21.
Adjustment of Status Required Documents
Similar to K-1 application, the Adjustment of Status application will require supporting documentation. This is a new and separate application and the documents may include the ones that have already been submitted for the K-1 Visa application. The following are some of the documents that need to be accompanied with the application:
- Birth certificate
- Copy of US entry documents
- K-1 fiance visa petition approval notice from USCIS
- Marriage certificate
- Passport size photos
- Credit card payment form for government fees
- Divorce decree
- Affidavit of Support from the U.S. citizen
- Change Name certificate, if any
The main difference between documents required for K-1 and Adjustment of Status is that the latter is now based on the applicant or the foreign spouse, not the U.S. petitioner anymore.
Adjustment of Status Package
- Consultation with our Immigration Attorneys
- Preparation and Submission of Adjustment Status Package
- Preparation and Submission of the I-131 Application for Travel Document
- Preparation and Submission of the I-765 Application for Employment Authorization (EAD)
- Follow up and Response to USCIS inquiries
- Unlimited Responses to Client’s Questions Regarding the Case
Frequently Asked QuestionsWho is entitled to apply for AOS from K1?
K1 Visa holders who entered the US on a K1 Visa and who married the I-129F petitioner within 90 days of entry to the US.When should I apply for AOS?
We advise our clients to apply as soon as practicable after entry into the US, but following marriage. Holders of K1 Visas cannot apply for AOS before they are married and have an original certified copy of their marriage certificate in hand. Bear in mind, and depending on the county in which you were married, it may take some time to obtain the marriage certificate following the actual marriage ceremony. This should be factored in to the timing of any AOS application.Can I still apply for AOS if the 90 day stay I was given upon entry to the US has expired?
Assuming you married during that 90 day period, you can still apply for AOS. However, you will be "out of status" during any period between the expiration of the 90 days and the receipt by USCIS of your AOS application and technically subject to deportation from the US. Our advice to our K1 AOS clients is always to ensure their AOS application is received by USCIS before the 90 day stay expires. Once the application has been received by USCIS, AOS applicants are granted a period of authorised stay in the US until a decision has been made on their AOS application.I did a medical as part of my K1 application, will I need to do another one in the US as part of the AOS application?
Generally no, K1 applicants for AOS are exempt from any further medical requirements provided they apply for AOS within one year of the date of the medical conducted as part of the K1 visa application. There are certain circumstances where USCIS might require another medical, but they are fairly uncommon.Will my spouse need to file another Affidavit of Support as part of the AOS application?
Yes, another Affidavit of Support must be filed with the AOS application. It should be noted that the financial requirements are more onerous than those required for the K1 application and the form is not the same. The Affidavit of Support is a very common source of issues during the AOS process and this is something we regularly help our clients with.Can I apply for AOS outside the US?
No, USCIS requires the applicant to be physically present in the US at the time of application and, following entry to the US and once the application is filed, you will be unable to work or leave the US until your application is approved or you receive Employment Authorisation/Advance Parole, whichever is soonest. If you leave the US before you receive Advance Parole or your AOS application is approved, USCIS will consider your AOS application abandoned. AOS is generally a lengthy process and we advise our clients with an ongoing need to work and/or travel to consider marrying and applying for a CR-1 Visa before they permanently settle in the US.What is Employment Authorisation/Advance Parole (EAD/AP)?
Due to the often lengthy period involved in processing AOS applications, USCIS allows applications for EAD/AP to be made concurrently with an application for AOS which grant the ability to work in the US (Employment Authorisation Document) and travel outside the US (Advance Parole) before a decision has been on the underlying AOS application. The grant of EAD/AP is usually (but not always) made by USCIS before the AOS application is approved and the two applications (EAD/AP) are commonly combined into a single card called a "Combo Card" which the applicant receives following approval. We always advise our clients to apply concurrently for EAD/AP and will automatically include the relevant applications with any K1 AOS application unless specifically instructed to do otherwise.Where are applications processed and how long do they take?
All applications (AOS/EAD/AP) are initially processed by the USCIS National Benefits Centre (NBC) in Missouri and EAD/AP applications are processed at the NBC in their entirety. The NBC will conduct an initial review of the various applications and, if they consider one or more of them to be deficient in any way, will either reject the application outright for resubmission or issue a Request for Further Initial Evidence. Once the NBC is satisfied that the applications are complete, they will process the EAD/AP application and send the AOS application to a local field office.
Waiting times at the time of writing for EAD/AP approval by the NBC are approximately 3 – 6 months.*
Waiting times for AOS interview/approval depend upon the field office dealing with the application and, at the time of writing, range from anything between 3 months to 24 months.What are the USCIS fees for the applications?
At the time of writing, USCIS fees for AOS are $1,225 which includes biometrics (the taking of photographs and fingerprinting). EAD/AP fees are waived for EAD/AP applications filed concurrently with a K1 AOS application.What makes a successful AOS/EAD/AP application?
Successful applications require a great deal of time, care and attention to detail. For many the process can be stressful, there are lengthy forms to fill out and a significant amount of supporting evidence needs to be provided. We have years of experience and expertise dealing with AOS/EAD/AP applications, a real time, up to the moment view of the process and, as rules and practices continually evolve, know precisely what USCIS is looking for in an application at any given time.
We can deal with the entire process from start to finish on your behalf and present the application in a way that gives you the best chance of success without encountering any of the common pitfalls and accompanying delays or stress.
Note: Normal processing times for EAD/AP have been significantly affected by the Covid- 19 pandemic. The average processing time is currently in the region of 6 – 8 months.
Please contact us for more details. We’ll be happy to help.
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