You have obtained the K1 fiancee visa and have joined your U.S. citizen in the U.S. -- now what?
The next step is getting married and applying for legal permanent residence (or the "green card") so you can live in the U.S. with your spouse. In order to obtain the green card, the foreign national spouse must file for "Adjustment of Status" (AOS) application.
In this article we provide a complete step-by-step procedure for filing AOS application, documents checklist, interview questions and tips to increase the chances of approval.
Xia successfully passed her K1 fiancee visa interview. She received her K1 visa and travelled to the U.S. before the visa expired. As required by immigration regulations, Xia and her U.S. Citizen fiance Jacob Miller married within 90 days of her entry into the U.S.
Xia and Jacob have been told by their friends that they now have to file an "Adjustment of Status" application so that Xia can obtain legal permanent residence or the “Green Card” but they’re not sure of how the Green Card process actually works.
The Form I-485, along with the other applications listed below, and initial evidence must be filed by the foreign national spouse after the marriage has taken place and only if it took place within the initial 90-day period after entry on the K1 visa.
Regardless of whether the foreign national marries or not within the 90 days, his or her legal status in the U.S. will expire after 90 days. There are no extensions. We strongly advise that the AOS application be filed before the end of the foreign national's 90-day period of stay (i.e. before the I-94 expires) so as to avoid any accrual of unlawful presence.
It is important to note that a person who entered on the K1 fiancee visa and married the U.S. citizen petitioner fiancee within the 90 day period will be allowed to file the AOS application even after the 90-day period of stay has expired.
The foreign national fiancee must have submitted this biographic information form with the original K1 petition as well, but it must be updated and submitted again.
The Affidavit of Support must be submitted with most family based AOS applications to show that the intending immigrant (the foreign national spouse in this case) will not become a public charge. The U.S. Citizen fiancee must have submitted a similar form, the I-134 Affidavit of Support, for the K1 visa petition. Now, the U.S. Citizen spouse must execute the I-864 or I-864EZ, Affidavit of Support for the AOS application. This is the only form in this application that must be executed by the U.S. Citizen spouse.
The U.S. Citizen spouse must show that he or she has enough income and/or assets to financially support the intending immigrant at 125% above the poverty guideline rate. The foreign national spouse's assets and income may be used but only in very limited circumstances.
If the assets and/or income of the U.S. Citizen spouse and the foreign national spouse do not exceed the minimum income as set forth in the poverty guidelines, then a "co-sponsor" will be required. The co-sponsor can be household members (an I-864A must be filed by each person) or any U.S. Citizen or legal permanent resident (an I-864 must be filed by each co-sponsor person). There is no limit to how many co-sponsors can be obtained. It is important to note that the U.S. Citizen spouse must file an I-864 Affidavit of Support regardless of his or her income or the use of co-sponsors.
All individuals submitting the Affidavit of Support, including the spouse, must submit supporting evidence to prove that they have the income, funds and/or assets stated in the Affidavit of Support including the most recent tax returns and Form W2’s, among others.
If the foreign national spouse’s medical exam was more than one year prior to the submission of the AOS application, or if there were any issues or problems with the first medical examination, a complete new medical examination must be conducted for the AOS application. The applicant must undergo a full, new physical examination and must have the blood tests conducted again.
The Form I-693, Report of Medical Examination and Vaccination Record must be submitted with the AOS application. The Form I-693 is filled out and certified by a civil surgeon who is authorized by USCIS to carry out medical examinations for immigration purposes.
Most AOS applicants must undergo a complete medical examination (which involves a full physical examination and blood tests for several communicable diseases) and must verify that they have received all required vaccinations. The civil surgeon must also administer any vaccinations that have not been received or verified by the applicant.
In the case of K1 visa holders who already had their medical examination before the visa interview, the civil surgeon may not have to repeat the entire medical exam. In most cases, the civil surgeon must simply certify and submit the Vaccination Record Supplement.
The Application for Employment Authorization is the application for the Employment Authorization Document (EAD) card or the "work permit". This is a supplemental form and is not mandatory.
Unlike most other immigrant or non-immigrant visa categories, the foreign national fiancee may also apply for the EAD card immediately after entering the U.S. He or she does not have to wait until the marriage, or filing for adjustment of status. The Employment Authorization Document, however, will only be valid for the 90-day authorized period of stay. The foreign national fiancee may also apply for a Social Security Number upon entering the U.S. on the K1 visa without having to wait to file for the EAD or AOS.
Regardless of whether the foreign national fiancee files the I-765 after entry or not, a new EAD application must be submitted with the AOS application as well.
The Form I-131, Application for Travel Document is the application for the Advance Parole (travel permit). This is a supplemental form and is not mandatory.
There are several very important points to remember regarding international travel and the K1 fiancee visa:
An adjustment of status application based on the K1 visa must be filed with the Chicago lockbox.
Once the AOS application is submitted, the foreign national spouse should receive 1 "receipt notice" or I-797 Notice of Action verifying submission and receipt of fees for each of the submitted forms – the I-485, I-765 and I-131.
The foreign national spouse will also receive an Application Support Center (ASC) Appointment Notice notifying him or her to appear for Biometrics at a local office or Application Support Center.
The U.S. citizen spouse is required to attend the adjustment of status interview.
The next and usually final step of the AOS process is the adjustment of status interview at a USCIS Field Office.
The foreign national spouse will receive notification to appear for the AOS interview. The notice provides the time of the appointment as well as the location and instructions in case the appointment needs to be rescheduled. The notice will also give a general list of documents to bring to the AOS interview.
The questions asked at the adjustment of status interview are customarily similar in type and scope to those asked by the Consular Officer at the K1 fiancee visa interview. It is a good idea for both spouses to review "Marriage Based Green Card: Interview Questions" and "Green Card Marriage Interview Experience: 10 Tips To Succeed."
Additional questions may be asked about the activities of the foreign national spouse since entering the U.S. to ensure that he or she has not violated their status, or committed any crimes in the interim. It is very important to thoroughly prepare for the AOS interview.
Much like the foreign national fiancee's K1 visa interview at the U.S. Consulate abroad, the Immigration Services Officer will want to verify the bona fides of the marriage and the alien’s admissibility.
Once the AOS application is approved, the foreign national spouse will receive the Form I-551, better known as the "Green Card."
If the marriage is less than two years old on the date of the approval of the AOS application, then the foreign national will be granted "conditional residence". Conditional residence or conditional Green Card is only valid for two years. In the 90 days preceding the expiration of the card, which is the two year anniversary of the receipt of conditional residence, the Form I-751, Petition to Remove the Conditions of Residence must be filed. The form must be signed by both spouses, with a few exceptions. This form must be submitted before the card expires.
The foreign national spouse, who is now a legal permanent resident, will be eligible to apply for naturalization to become a U.S. Citizen after 3 years, as opposed to 5 years, as long as all other eligibility criteria are met.
Jacob and Xia now understand the Adjustment of Status process for K1 visa holders. They are diligently collecting the information, documents and photographs required for submission while VisaPro immigration attorney is preparing the application.