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Adjustment of Status

Case type: Allegations of fraud. US Citizen’s Spouse. Visa Waiver (Visitor) entry.

Category: Adjustment of Status, Form I-130, Form I-485, ESTA, Fraud/Misrepresentation, Waiver, Engineers
Status: Green Card AOS Approved

We have received a particularly remarkable green card approval a few weeks ago.  USCIS alleged fraud and denied the green card where the spouse of a US citizen had entered the US on visa waiver and then applied for Adjustment of Status (AOS) within a few days after entry.

We were retained once the green card had been denied.  The allegations of fraud or misrepresentation are particularly troublesome because they operate as a PERMANENT bar against immigration.  There is a narrowly tailored waiver available, but it can be difficult to obtain.

We filed a Motion to Reopen the denied AOS and applied for a new AOS with the waiver request.  Here comes the tricky part -- the waiver request form requires us to concede that we have committed fraud.  That was untrue.  Our clients had acted innocently.  USCIS was of the opinion we must checkmark the box on the waiver form that admits to fraud.   I refused to permit that.  The reason: if we admit fraud under penalty of perjury, and that admission is false; would that admission not amount to perjury and perhaps fraud?

We were willing to take this matter to court.  We had sufficient evidence on the record indicating innocence.  To our relief, USCIS approved the AOS without further inquiry.

PS Note that entering the US on any short term visa (except K visas and dual intent visas like H-1, L-1, etc. – I have a blog entry on what are dual intent visas) and trying to convert to a long term visa or green card can be viewed with suspicion by USCIS.

From: Rajiv.

Click HERE to watch a video on this discussion.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.

Consular Processing

The Immigration and Nationality Act (INA) offers an individual two primary paths to permanent resident status (a green card). An individual who is the beneficiary of an approved immigrant petition and has an immigrant visa number immediately available may apply at a U.S. Department of State consulate abroad for an immigrant visa in order to come to the United States and be admitted as a permanent resident. This pathway is referred to as “consular processing.” 

Adjustment of status is an alternate process by which an eligible person, who is already in the United States, can apply for permanent resident status without having to return to his/her home country to complete processing. For more information, see our Adjustment of Status& page .

Steps for Consular Processing

1. Determine Your Basis to Immigrate

The first step in consular processing is to determine if you fit into a specific immigrant category. Most immigrants become eligible for a green card (permanent residence) through a petition filed on your behalf by a family member or employer.  Others become permanent residents through first obtaining refugee or asylum status, or through a number of other special provisions.  To see the many different ways to get a green card, see the links to the left. 

2. File the Immigrant Petition

When you know what category you believe best fits your situation, in most cases, you will need to have an immigrant petition filed on your behalf.

  • Family Based

Family based categories require that a U.S. citizen or permanent resident relative file a Form I-130,, Petition for Alien Relative, for you. For more information, see our Family& page.

  • Employment Based

Employment based categories most often require the intending U.S. employer to file a Form I-140,& Petition for Alien Worker, for you.  Entrepreneurs who intend to invest significant amounts of capital into a business venture in the United States may file Form I-526,, Immigrant Petition by Alien Entrepreneur” on their own behalf. For more information, see Working in the U.S.&nbbsp;page.

  • Special Classes of Immigrants

In some cases, certain immigrants may file a Form I-360, PPetition for Amerasian, Widow(er), and Special Immigrant, or have one filed on their behalf.

  • Humanitarian Programs

Most humanitarian programs do not require an underlying petition, although individuals may need to meet additional requirements before they can adjust status. For more information, see Humanitarian&nbbsp;page.

Although immigrant petitions are filed with USCIS, In some cases, an I-130 petition may be filed for an immediate relative (spouse, child, or parent of a U.S. citizen) with a U.S. embassy or consulate abroad. Situations where this may be applicable include:</p>

  • If the U.S. citizen has been authorized to be continuously residing within the jurisdiction of the consular office for at least the previous 6 months
  • Members of the military
  • Emergency situations
  • Situations involving the health or safety of the petitioner
  • When in the national interests of the United States

Please check with the consulate before submitting a petition.  For more information, see the U.S. Department of State&nbbsp;website.  

3. Wait for a Decision on Your Petition

USCIS notifies the petitioner of a decision.  If the petition is denied, the notice will include the reasons for denying the petition and any rights to appeal the decision.  If the petition is approved and if you are the beneficiary of the petition and living outside the United States or living in the United States, but choose to apply for your immigrant visa abroad, USCIS will then send the approved petition to the Department of State’s National Visa Center (NVC), where it will remain until an immigrant visa number is available. See Visa Availability & Priority Dates p;pages for more information. 

4. Wait for Notification from the National Visa Center

The National Visa Center, which is responsible for the collection of visa application fees and supporting documentation, will notify the petitioner and beneficiary when the visa petition is received and again when an immigrant visa number is about to become available. They will also notify the petitioner and beneficiary of when they must submit immigrant visa processing fees (commonly referred to as “fee bills”) and when supporting documentation must be submitted. 

5. Go to Your Appointment

Once a visa is available or a beneficiary’s priority date is current (earlier than the cut-off date listed in the monthly Visa Bulletin),the consular office will schedule the applicant for an interview. The consular office will complete processing of the applicant’s case and decide if the beneficiary is eligible for an immigrant visa.

6. Notify the National Visa Center of Any Changes

You do not need to contact the National Visa Center about your petition, they will contact you for the information they need.  You should, however, contact the NVC if there is a change in your personal situation or if you change your address. For NVC contact information, see the “NVC Contact Information” link to the right. It is important to notify the NVC if you reach the age of 21 for a child or have a change in your marital status, as this may affect your eligibility or visa availability.

7. After Your Visa is Granted

If you are granted an immigrant visa, the consular officer will give you a packet of information.  This packet is known as a “Visa Packet.”  You should not open this packet. 

Upon your arrival to the United States, you should give your Visa Packet to the Customs and Border Protection officer at the port of entry. You will be inspected by a Customs and Border Protection officer and if found admissible, will be admitted as a permanent resident of the United States, which gives you the authority to live and work in the United States permanently. 

8. Receive Your Green Card

You will be mailed your green card.  If you do not receive your green card within 30 days of your arrival, please call the USCIS National Customer Service Center at 1-800-375-5283 or visit your local office by making an InfoPass appointment.  Make an appointment by visiting the Infopass page.

Case type: I-485 Approval

Category: Adjustment of Status, General Green Card

The main applicant and his wife filed their I-485 petitions together.  At the time of filing, the wife was pregnant. In regards to the required medical examination, there are certain vaccinations that should not be given during pregnancy as they could affect the fetus.  After the birth of the baby, the mother is then able to return to the doctor and get the vaccinations that are required the GC process.   In this case, the mother’s intention was to breast feed her baby for at least 2 years.  They wanted to apply for a waiver of the vaccinations of any kind because she didn't want to get them while breast feeding, regardless of what the doctor said about vaccinations being safe for the nursing baby.  We were able to get the I-485 approved for both the main applicant and wife without receiving an RFE or having to file the waiver.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.

Policy Memorandum on Adjudication of Adjustment of Status Applications for Individuals Admitted to the United States Under the Visa Waiver Program

This policy memorandum (PM) provides guidance on the adjudication of Form I-485, Application to Register or Adjust Status, filed by immediate relatives of U.S. citizens who were last admitted under the Visa Waiver Program (VWP). This PM updates the Adjudicator’s Field Manual (AFM) by adding a new section (j) to Chapter 10.3 and 23.5 (AFM Update AD11-30).

For more details on the memorandum please click the attachment

Guestbook Entry for Bhakti and Milind, United States

Name: 
Bhakti and Milind
State: 
Texas
Country: 
United States
Comment: 

A big Thank you to the Law Office of Rajiv S. Khanna for all the valuable advice and help they provided with our Green Card processing! We just got the CPO emails yesterday and are waiting for the cards to arrive now. We highly recommend them for any kind of immigration work. Rajiv and his team are great to work with. For specific case informations, we have scheduled direct calls with Rajiv and he has always provided valuable advice at appropriate times.

Posted on: 
3rd Oct, 2013

Guestbook Entry for Vijay Mehta, United States

Name: 
Vijay Mehta
State: 
Virginia
Country: 
United States
Comment: 

 Finally the day has come for which I have been waiting for a long. I sincerely thanks to Rajiv and his entire team for providing me high level professional services during the entire process. I especially thanks to Amrita and Prernaji for help me so much with all required processes and answering all my queries promptly. Both of them impressed me with their thorough knowledge of process. I would recommend Rajiv and his team to all my friends without any hesitation.

Posted on: 
1st Oct, 2013

Extension of Validity of Medical Certifications on Form I-693

This policy memorandum (PM) temporarily extends the validity of civil surgeon endorsements on Form I-693 for adjustment of status and temporary residence applicants.This PM updates the Adjudicator’s Field Manual (AFM) by revising Chapter 40.1(c), (AFM Update AD 13-13). The guidance contained in this PM is controlling and supersedes any prior guidance on the subject.

Click the attachment to read more about the memorandum.

Guestbook Entry for Anand Bagavandoss, United States

Name: 
Anand Bagavandoss
State: 
LA
Country: 
United States
Comment: 

We are so pleased with your service and prompt response to all the queries and concerns. Each and every doubt was explanined to us in very professional manner. I will recommend Rajiv S Khanna's law firm to all of my friends.

Posted on: 
11th Sep, 2013

USCIS Implements Customer Identity Verification at Field Offices

Beginning September 9, 2013, USCIS will employ a new verification tool called Customer Identity Verification (CIV) in its field offices. Customers will now submit biometric data, specifically fingerprints and photographs, when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit.

CIV will enhance the integrity of the immigration system and combat identity fraud by allowing USCIS to biometrically verify a customer’s identity. Having resolved a technical issue that delayed our original launch, the tool will now be phased in between September 9 and October 21, 2013 to customers attending an interview or being issued evidence of an immigration benefit.

How It Works:

After a customer arrives at a field office, clears security, and is called to the counter, we will electronically scan two fingerprints and take a picture to verify their identity. The process takes just a few minutes and applies only to customers who have an interview or receive evidence of an immigration benefit. People who come to our office for InfoPass appointments or to accompany a customer will not undergo this process. After we verify the customer’s identity, they can proceed to their interview or receive their document.

Currently, USCIS requires applicants and petitioners requesting immigration or naturalization benefits to visit one of our Application Support Centers (ASCs) to provide biometric data. USCIS uses this data to help determine eligibility for requested benefits. This requirement, along with providing a government-issued document for examination, will not change.

How It Helps:

CIV connects instantly to the United States Visitor and Immigrant Status Indicator Technology’s (US-VISIT’s) Secondary Inspections Tool (SIT). SIT is a Web-based application that processes, displays and retrieves biometric and biographic data. US-VISIT also links databases associated with border inspections and security.  

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