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Adjustment of status

What is Adjustment of Status?

ADJUSTMENT OF STATUS IS THE PROCESS OF GETTING A THAI SPOUSE OR FIANCE/ FIANCEE A “GREEN CARD” IN THE UNITED STATES.Adjustment of Status is the procedure whereby the applicant (in this case the Thai fiancé/ fiancée or spouse) becomes a lawful permanent resident (“Green Card” holder) of the United States without leaving the country. With the CR-1 and IR-1 Visas this process is effectively frontloaded when the Thai Spouse applies for a Visa at the US Embassy in Thailand.

Is there any information I should know about Adjustment of Status?

THE MOST IMPORTANT ASPECT OF ADJUSTMENT OF STATUS IS MAKING SURE YOUR THAI FIANCE/ FIANCEE OR SPOUSE IS IN THE US ON THE PROPER VISA .If you try to bring your Thai fiancé/ fiancée or spouse into the US on a tourist visa and then attempt to marry or simply adjust status to Permanent Residence, this act can be construed (or misconstrued) as an attempt to perpetrate a fraud on the US government (namely, USCIS) and you and your Thai significant other can face possible criminal penalties. Also, should this situation arise, your Thai fiancé/ fiancée or spouse could face possible deportation and be barred from returning to the US.

What is the Legal Authority that deals with Adjustment of Status?

INA 245(a) The statutory authority dealing with adjustment of status is 245(a) of the Immigration and Nationality Act ("INA").

As per INA 245(a):
The status of an alien who was inspected and admitted or paroled into the United States can be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:

• 1. the alien makes an application for such adjustment,
• 2. the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
• 3. an immigrant visa is immediately available to him (or her) at the time his application is filed.

I have Heard that There are only a Limited Number of Green Cards, is this True?

NO, NOT FOR THE THAI FIANCE/ FIANCEE OR SPOUSE OF A US CITIZEN
For immigrants arriving to the US there is a set number of how many “Green Cards” will be given to people of a particular nationality. However, this is not a problem in the case of a Thai fiance/ fiance or spouse of a US Citizen because an unlimited number can be issued to spouses of US Citizens. An adjustment of status application should be filed with the USCIS in the district of the applicant's residence.

Can my Thai Fianc / Fiance or Spouse Application for Adjustment of Status be denied?

IN THEORY YES, IN REALITY THIS VERY RARELY HAPPENS TO THE SPOUSE OF A US CITIZEN
Adjustment of status is discretionary USCIS can, and in some cases does (particularly since 9/11), deny an application for adjustment of status even where there is no legal rationale for denial.

However, in the real world, USCIS grants adjustment of status petitions when the Thai fianc / fiance or spouse is eligible by statute and there aren’t any "negative factors" present in the case. If negative factors exist, then these factors will be evaluated alongside “positive factors” in order to decide if Adjustment of Status should be granted. A close family relationship, like a marriage, will be a powerful argument in favor of adjustment.

Entry into the US on a tourist visa and a subsequent marriage could be viewed as a “negative factor” by the USCIS officer reviewing the case and could be grounds for rejecting the application for Adjustment of Status.

Can my Thai Fiance / Fiance or Spouse leave the US and Re-Enter while the Adjustment of Status is Pending?

THE K-3 THAI SPOUSE: YES
THE K-1 THAI FIANCE/ FIANCEE WHO GETS MARRIED IN THE US: NO
The K-3 Visa is a multiple re-entry visa and if the Thai Spouse should leave the US while the Adjustment of Status application is pending, then it will not be viewed as an abandonment of the Adjustment of Status petition.

However, this is not the case for the Thai K-1 visa holder. Under 8 CFR §245.2(a)(4)(ii), an Adjustment of Status petition will be deemed abandoned if the Thai fiancé/ fiancée departs the United States while waiting for approval of the application.

The Thai K-1 visa holder can obtain Advance Parole before departing the US to ensure that the Adjustment of Status application will not be considered abandoned.