Are you eligible for a family I-485?

What are we talking about?

If given the choice, most family applicants would like to stay in the United States during the entirety of the Green Card process to avoid separation from loved one. Unfortunately, not everybody, not even immediate relatives, is allowed to go through what is called ‘adjustment of status’ and involves submitting Form I-485.

First Obstacle: Geographic Location

The applicant must be physically present in the United States. Applicants who reside outside the United States must go through consular processing. Applicants who enter the United States on a temporary visa, and then file for permanent residence within 90 days of their admission are presumed by USCIS to have made a material misrepresentation on their temporary visa application (this the so-called ’90 Day Rule’).

Second Obstacle: Legal Entry in the United States

The applicant must have been inspected and admitted into the United States, or inspected and paroled into the United States. There is almost no exception to that requirement, and that is why family applicants who do not have legal entry into the United States, including immediate relatives, have to switch to consular processing.

Third Obstacle: Green Card Eligibility

Applicants who want to submit a family-based Form I-485 have to prove that they are eligible for a family Green Card under an immediate relative or a family-preference classification. Establishing that the family relationship between sponsor and applicant is ‘qualifying’ is the primary purpose of Form I-130.

Fourth Obstacle: Green Card Availability

Applicants who are eligible under a family-preference classification have to be ‘allowed’ by USCIS to submit Form I-485 (immediate relatives do not have to worry about this because a Green Card is always available to them). This is achieved when the priority date of the applicant is ‘current’ when compared to one of the charts of the Visa Bulletin (USCIS says each month which chart to use), which can be:

• Either the ‘Filing Date’ chart
• Or, the ‘Final Action Date’ chart

Fifth Obstacle: Bars to Adjustment.

Bars to Adjustment prevent applicants from submitting Form I-485, but certain applicants are ‘exempt’ from certain bars. Bars to adjustment make it much harder for applicants eligible under a family-preference classification to file Form I-485. Among the bars are:

• Being out of status at the time of filing I-485 (immediate relatives are exempt)
• Work without authorization (immediate relatives are exempt)
• Failure to continuously maintain lawful immigration status (immediate relatives are exempt)
• Entry under a Visa Waiver Program (immediate relatives are exempt)

Sixth Obstacle: Admissibility

To successfully adjust status, family applicants need to be ‘admissible’ to the United States. Applicants are ‘inadmissible’ when they have a ‘ground of inadmissibility’ against them. Grounds of inadmissibility include health, criminal activity, national security, public charge, fraud and misrepresentation, prior removals, unlawful presence in the United States, …