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.
My Case Scenario
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.
A. Adjustment of Status For The K1 Fiancee
“Adjustment of Status” is the process whereby a person who is physically present in the U.S. can apply for legal permanent residence without leaving the U.S. or having to go to a U.S. Consulate abroad. With a few exceptions, adjustment of status is reserved for those who are in the U.S. in lawful status and have entered the U.S. upon being inspected by an immigration official.
Upon entering the U.S. on the K1 fiancee visa, the foreign national is only authorized to stay in the U.S. for 90 days and must marry the U.S. citizen fiancee within those 90 days. Once married, the foreign national fiancee (now spouse) must file for AOS in order to remain in the U.S. and obtain permanent resident status.
If the foreign national fiancee does not marry the U.S. Citizen fiancee within 90 days, he or she must depart the U.S. Foreign nationals who enter on the K1 visa and do not marry within the 90 days are not allowed to change or adjust status to any other non-immigrant or immigrant visa category except in very limited circumstances. This is true even if he or she marries another U.S. Citizen. If the K1 visa holder does not marry within 90 days and remains in the U.S., he or she will be out of status and will begin accruing unlawful presence.
B. Application To Adjust Status
There are several mandatory and supplemental forms to be filed with U.S. Citizenship & Immigration Services (USCIS) in order for the foreign national to obtain legal permanent residence and be allowed to remain in the U.S. legally. The forms that should be completed and filed concurrently to USCIS are:
1. Form I-485, Application To Adjust Status
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.
2. Form G-325A, Biographic Information Sheet Form
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.
DID YOU KNOW?
The Biographic Information Sheet provides basic background information about the applicant.
3. Form I-864 or Form I-864EZ, Affidavit of Support
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.
4. Form I-693, Report of Medical Examination And Vaccination Record
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.
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.
5. Form I-765, Application For Employment Authorization (Work Permit)
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.
DID YOU KNOW?
The EAD card allows the foreign national spouse to accept employment in the U.S. The foreign national spouse is not authorized to work in the U.S. until obtaining legal permanent residence or the EAD card is issued, whichever occurs first.
6. Form I-131, Application For Travel Document (Travel Permit)
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:
- The K1 fiancee visa is valid only for one single entry. If the foreign national fiancee (spouse) leaves before getting married or filing the AOS application, he or she will not be allowed to return on the K1 visa. The foreign national fiancée (spouse) must obtain a new visa in order to re-enter.
- Once the application to adjust is filed and the Application for the Travel Document is also filed, the foreign national spouse should not leave the U.S. until the advance parole document is issued. Leaving the U.S. before the I-131 is approved will be deemed abandonment of the entire AOS application. Please note that if an emergency does arise which requires the foreign national spouse to travel abroad before adjudication of the I-131, there are processes in place with USCIS and at the Field Offices to expedite issuance of the Advance Parole.
- If the AOS application is not filed before the end of the 90-day period of stay, the foreign national spouse will begin to accrue unlawful presence in the U.S. because his or her period of authorized stay will have expired. It is advised that you seek the assistance of an immigration attorney if this is the case.
DID YOU KNOW?
If the I-765 and I-131 are submitted concurrently with the AOS application, the work permit and travel permit will be issued together on one document. The card that the AOS applicant receives from USCIS will be valid for both work and travel. USCIS can still issue a separate advance parole document in certain circumstances.
C. Supporting Documents To Be Filed With AOS Application
In addition to the forms, the following documents should also be submitted in support of the application to adjust status. Failure to submit these documents may delay the processing of the case.
- A copy of the I-129F Approval Notice
- A copy of the foreign national spouse’s biographic page of the passport (a separate copy should also be included with the I-765 and the I-131)
- A copy of the foreign national spouse’s K1 visa and I-94 Arrival/Departure Record (a separate copy should also be included with the I-765 and the I-131)
- A copy of the marriage certificate
- A copy of the foreign national spouse’s birth certificate
- 2 passport-sized photographs. The foreign national applicant’s full name and A-number should be written with a pencil or felt-tipped pen on the back of each photograph (2 additional passport-sized photos should be included with the I-765 and I-131)
- A copy of any EAD cards previously issued to the foreign national should be included with the I-765 application.
D. Filing For Adjustment of Status
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.
DID YOU KNOW?
Biometrics involves the taking of fingerprints (of all ten fingers) and a digital photograph.
E. 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 U.S. citizen spouse is required to attend the adjustment of status interview.
F. AOS Interview – What Documents To Carry
Here is a list of documents that must be carried to the adjustment of status interview:
1.The interview notice
2.The foreign national spouse’s passport (carry previously held passports if applicable, for example if the K1 visa was stamped in a previously issued passport)
3.The foreign national spouse’s I-94 Arrival/Departure Record
4.The original I-129F Approval Notice and any and all previously held immigration documents or correspondence
5.The foreign national spouse’s EAD card and Advance Parole documents
6.Both spouses’ driver’s licenses or state issued identifications
7.Both spouses’ original birth certificates
8.The original marriage certificate
9.The U.S. citizen spouse’s U.S. passport and/or naturalization certificate (if applicable)
10.Updated documents to supplement the Affidavit of Support including most recent tax return, Form W-2 and pay stubs
11.Birth certificates of the applicant’s children (if applicable)
12.Original or certified copies of any divorce/annulment/death certificates for previous spouses for both individuals
13.Documentation evidencing the bona fides of the marriage. This can include but is not limited to:
a.Photographs showing a bona fide relationship- the pictures should include pictures from before the wedding, the wedding itself and after the wedding
b.Joint leases and/or mortgage documents
e.Insurance policies (health, life, car, etc.)
f.Joint credit cards
g.Proof of joint ownership of cars, homes, furniture, etc.
h.Any additional evidence you wish considered to establish a bona fide marriage.
G. AOS Interview Questions – What To Expect
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.
H. The Green Card And Conditional Residence
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.
DID YOU KNOW?
If the marriage is at least two years old on the date of the approval of the AOS application, then the foreign national will be granted legal permanent residency with no conditions. The I-551 card or Green Card will have a validity of 10 years.
My Case Scenario
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.
A Foreign national who enters the U.S. on a K1 fiancee visa must marry the U.S. Citizen fiancee within 90 days and file for Adjustment of Status in order to remain in the U.S. and obtain permanent resident status. As part of the AOS process, there are several mandatory and supplemental forms that should be filed and applicants must ensure that all the necessary forms, along with supporting documents are properly filed to avoid delays in the processing of the Green Card application.
VisaPro immigration attorneys helped U.S. Citizens, legal permanent residents, and their foreign national relatives through the K-1, I-130 and Adjustment of Status process successfully.
If you have any queries about the Family Based Green Card application process, or need help in filing for Adjustment of Status, contact our experienced immigration attorneys immediately for a FREE Immigration Consultation.
We’ll analyze your specific situation and recommend the most effective strategy based on our attorneys’ near 100% success rates.
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