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I-130 for Non K1 Adjustment of Status2024-01-11T11:25:09+00:00

I-130 For Non-K1 Adjustment Of Status: Navigating The Application Process

Immigration to the United States involves legal steps and procedures, particularly when an individual seeks to adjust their status from non-immigrants to lawful permanent residents. One critical component of this process is the I-130 form, officially known as the Petition for Alien Relative. This form is the foundation for family-based immigrants to establish a qualifying relationship between a U.S. citizen or permanent resident and their foreign relative who wishes to live permanently in the United States.

The I-130 petition is distinct from the K-1 visa process, which is specifically for the foreign-citizen fiancé(e)s of U.S. citizens. In contrast, the I-130 is required for relatives who entered the United States on a different non-immigrant visa and now seek to adjust their status.

Form-I-929

It is the pivotal first step in the family-based immigration process and must be approved before one can file for an adjustment of status, applying for a Green Card through Form I-485.

Completing the petition accurately and providing the necessary evidence of the relationship is critical for approving the I-130. The success of this petition determines the ability to move forward in the immigration process. Therefore, applicants must carefully comply with all requirements and provide comprehensive documentation to avoid delays or denials, which could significantly impact their immigration journey in the United States.

Eligibility Criteria

When applying for a non-K1 adjustment of status via an I-130 petition, an applicant’s eligibility hinges on specific familial relationships. Two primary categories are considered: marriage to a U.S. citizen and family relationship with a U.S. citizen or permanent resident.

Marriage to a U.S. Citizen

Individuals who have entered into a valid marriage with a U.S. citizen may apply for an adjustment of status to lawful permanent resident (LPR). The marriage must be bona fide for eligibility, meaning it was established based on a genuine relationship and not merely for immigration benefits.

  • The U.S. citizen must file Form I-130, Petition for Alien Relative.
  • The couple must provide documentation to prove the legitimacy of their marriage, such as joint bank accounts, lease documents, or photos together.

Family Relationship with a U.S. Citizen or Permanent Resident

Noncitizens with certain family relationships to a U.S. citizen or lawful permanent resident may also be eligible for adjustment of status.

Immediate Relatives of U.S. Citizens:

  • Parents: if the U.S. citizen is 21 years of age or older.
  • Unmarried children under 21: Biological, adoptive, or step-children.

Other Family Members:

  • Unmarried sons and daughters over 21
  • Married children of any age
  • Siblings: if the U.S. citizen petitioner is 21 or older.

For relatives of permanent residents, the categories are more limited.

  • Spouses of permanent residents
  • Unmarried children of permanent residents

Each category has specific visa availability, and the petitioner must file an I-130 and prove the qualifying relationship.

Form I-130 Overview

Form I-130, officially called the Petition for Alien Relative, is a crucial step for individuals aiming to establish a familial relationship with a non-U.S. citizen who seeks permanent residence.

Purpose of Form I-130

The Form I-130 is filed by U.S. citizens or lawful permanent residents to establish a valid family relationship with a relative intending to immigrate to the United States. Once the relationship is confirmed by the United States Citizenship and Immigration Services (USCIS), the relative may proceed with the application process for an immigrant visa or adjustment of status.

Documents Required

When submitting Form I-130, the petitioner must provide:

  • Proof of Citizenship or Permanent Residence: A copy of a valid U.S. passport, naturalization certificate, or lawful permanent resident card.
  • Proof of Family Relationship: Marriage certificate for spouses, birth certificates for children and parents, and evidence of legal relationship.

Meticulous documentation is essential to avoid delays.

Filing Fees

As of the current date, the filing fee for Form I-130 is $535. This fee is subject to change, so petitioners should confirm the current cost with USCIS before submission. Additional costs may arise if biometric services are required.

Note: Afghan nationals may be eligible for a fee exemption; refer to the latest USCIS announcements.

Adjustment of Status Process

The Adjustment of Status process is a critical pathway for nonimmigrants residing within the United States to obtain lawful permanent residency. It involves several key steps, from filing the necessary forms to attending interviews and obtaining work and travel authorization.

Filing Form I-485

To begin the adjustment process, an individual must file Form I-485, Application to Register Permanent Residence or Adjust Status. As of December 23, 2022, the United States Citizenship and Immigration Services (USCIS) mandates using its 12/23/22 edition of the form. This document serves to establish eligibility for a Green Card.

Biometrics Appointment

After submission, the applicant will receive a notice to attend a biometrics appointment. USCIS collects fingerprints, photographs, and a signature during this appointment to conduct required background and security checks.

Interview Preparation

USCIS may require an interview with the applicant. Preparing for this step includes gathering all original documents related to the application and prior immigration history, such as passports, employment records, and any criminal records.

Employment Authorization Document

Applicants may apply for an Employment Authorization Document (EAD) by filing Form I-765. This document permits the applicant to work legally in the U.S. while the I-485 is being processed.

Advance Parole Travel Document

To travel internationally without affecting the pending status, applicants may seek an Advance Parole Travel Document. It is important to file Form I-131 and receive this document before leaving the United States.

Evidence of Bona-Fide Marriage

When filing for an adjustment of status via the I-130 petition based on marriage to a U.S. citizen, it’s essential to demonstrate that the marriage is bona fide, meaning that it is genuine and not entered into solely for immigration benefits. The United States Citizenship and Immigration Services (USCIS) requires substantial and convincing documentation to prove the authenticity of the marital relationship.

Joint Financial Documents

Joint Financial Documents are a compelling way to show that a couple has merged their financial affairs. Evidence that USCIS commonly accepts includes:

  • Bank Statements: Accounts showing both names, reflecting shared financial responsibilities and activities.
  • Insurance Policies: Life, health, auto, or home insurance that lists the spouse as a beneficiary or co-insured.
  • Property Ownership: Deeds or titles showing joint ownership can be especially persuasive.

Affidavits from Friends and Relatives

Affidavits written by friends and family members can serve as personal testimonies to the authenticity of the marriage. These affidavits should:

  • Be written by individuals with a close relationship with the couple and firsthand knowledge of the marriage.
  • Include details on how the individual knows the couple and observations that lead them to believe the marriage is genuine.

Evidence of Cohabitation

Cohabitation is a strong indicator of a bona fide marriage. Applicants should provide:

  • Utility Bills: Documents showing shared residence (utility, internet, phone bills) with both names.
  • Lease/Mortgage Agreements: Documents indicating that both parties reside at the same address.
  • Photographs: Images of the shared living space can supplement the documentation of cohabitation.

Common Mistakes to Avoid

When applying for a non-K1 adjustment of status, applicants often encounter a few common pitfalls. Awareness and careful preparation can significantly reduce the chance of experiencing a setback in the application process.

Incomplete Applications

An applicant must ensure every required section of the I-130 and accompanying forms are filled out completely. Any fields left blank, except those explicitly specified as optional, can lead to a denial. It’s crucial to double-check each form before submission.

Incorrect Fees

The correct filing fees must accompany the I-130 application. Fees vary based on the applicant’s age and intended purpose and are subject to change, so verifying the current amount required by USCIS before submitting the payment is important. An incorrect fee can result in a rejection of the application.

Missing Evidence

Evidence of relationship: For non-K1 entrants, the USCIS requires concrete proof of a qualifying familial relationship. This can include marriage certificates, birth certificates, or other legal documents.

Proof of lawful entry: Applicants must provide evidence of lawful entry into the United States, such as a copy of a stamped passport or I-94 form.

Applicants should review the USCIS instructions carefully to ensure all necessary evidence is included with their application package. Missing evidence can delay the process or cause the application to be denied.

Potential Challenges and Solutions

When adjusting status through an I-130 petition for non-K1 visa holders, applicants might encounter specific legal impediments that need careful handling. This section delves into common obstacles and suggests actionable steps for resolution.

Addressing Prior Immigration Violations

Immigration violations can severely impact an individual’s eligibility for an adjustment of status. If an applicant has overstayed a visa or worked without authorization, these violations could lead to the denial of their I-130 petition. Solutions include:

  • Consultation with an Immigration Lawyer: An immigration attorney can guide whether a waiver is available or advisable.
  • Filing for Waivers: In some cases, waivers for prior violations, such as Form I-601 Application for Waiver of Grounds of Inadmissibility, may be filed to forgive certain violations and allow for the adjustment of the status process to continue.

Overcoming Inadmissibility Grounds

Various grounds of inadmissibility, ranging from health-related issues to criminal backgrounds, can prevent the approval of an adjustment of status application. Applicants can take the following steps to address these issues:

  • Gathering Documentation: Accurate and comprehensive records, such as criminal clearance certificates or medical records, should be collected to clarify doubts regarding the applicant’s admissibility.
  • Seeking Legal Remedies: Wherever applicable, legal remedies such as filing for a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, can be pursued to overcome prior removals or deportations that contribute to inadmissibility.

Applicants must be proactive and transparent throughout their application process, addressing any potential roadblocks with the appropriate legal strategies.

Post-Submission Steps

After submitting the I-130 Petition for Alien Relative, applicants enter the waiting phase, during which they can perform actions to manage or inquire about their case progression. This comes with various post-submission steps that ensure the process is on track and appropriately managed.

Service Requests

Applicants who notice their case is outside normal processing times can submit a service request. This is a formal inquiry to USCIS for cases that appear to be delayed without adequate explanation. Applicants must provide:

  • Receipt Number: The unique identifier for their application.
  • Personal Information: Such as full name and date of birth.
  • Specific Details: Pertinent to the delay of their application.

Status Inquiries

Applicants can check the status of their I-130 petition using USCIS’s online Case Status Tool. They need their receipt number to log in and receive an update. Regularly checking the case status ensures they are aware of the following:

  • Application Updates: Notifications about any changes or actions needed.
  • Approval Notices or RFEs: Receipt of Requests for Evidence or Approval.

Dealing with Delays

Delays can occur due to case complexities or processing backlogs. Applicants are advised to:

  • Document Communication: Keep a log of all correspondences with USCIS.
  • Be Proactive: If they suspect an undue delay, consider consulting an immigration attorney or contacting their local congressional representative for assistance.

Applicants should respond to Requests for Evidence (RFEs) promptly, which can further delay the process if not appropriately addressed.

Legal Considerations

When an individual enters the United States on a non-immigrant visa other than a K-1 fiancé(e) visa and seeks to adjust his status to that of a lawful permanent resident, various legal elements must be considered. The applicant must file Form I-130 to establish a qualifying family relationship.

Consultation with an Immigration Attorney

An immigration attorney can provide crucial guidance on the legality of one’s adjustment of status application. They ensure compliance with the complex regulations that govern family-based immigration petitions. The attorney’s role includes:

  • Advising on eligibility for adjustment of status.
  • Preparing and reviewing Form I-130 and related documentation.
  • Assisting with potential legal barriers that might affect the application.

Legal representation is often seen as a valuable investment in the adjustment of the status process to mitigate any risks of errors or omissions that could lead to delays or denials.

Frequently Asked Questions

What is Form I-130, and who needs to file it?2024-01-04T12:18:54+00:00
Form I-130, Petition for Alien Relative, must establish a valid family relationship between a U.S. citizen or lawful permanent resident (LPR) and a relative seeking to immigrate to the United States. Non-K1 visa holders who wish to adjust their status must file an I-130 in addition to their adjustment of status application.
What is Adjustment of Status?2024-01-04T12:19:22+00:00
Adjustment of Status is when an individual changes their legal status from non-immigrant to immigrant (LPR) without returning to their home country to complete visa processing.
Who is eligible for a Non-K1 Adjustment of Status?2024-01-04T12:19:45+00:00
Individuals who entered the U.S. on a non-immigrant visa other than a K1 fiance visa and have a U.S. citizen or LPR relative who can file an I-130 on their behalf may be eligible for a Non-K1 Adjustment of Status.
Can I work while my Adjustment of Status is being processed?2024-01-04T12:20:10+00:00
Applicants may apply for an Employment Authorization Document (EAD) by filing Form I-765. They can work legally in the U.S. if approved while their Adjustment of Status application is pending.
Is it possible to travel while my application is pending?2024-01-04T12:20:33+00:00
Applicants must apply for Advance Parole by filing Form I-131 if they wish to travel outside the U.S. during the pendency of their application. Traveling without Advance Parole may result in the denial of their application.
How do I track the status of my case?2024-01-04T12:21:50+00:00
Applicants can track the status of their Adjustment of Status case online through the United States Citizenship and Immigration Services (USCIS) website using the receipt number provided after filing.

Conclusion

Adjusting status to a lawful permanent resident of the United States via the I-130 form is a pivotal step for non-K1 visa holders. This process establishes the necessary familial relationship and initiates the pathway to a Green Card. Applicants must follow a sequence of steps meticulously, ensuring that each requirement is adequately met.

The I-130 petition is crucial for those who entered the U.S. on non-immigrant visas other than the K1 fiancé(e) visa. It serves as the foundational document proving a qualifying family relationship. Upon approval, the applicant can proceed with the status adjustment process. This process includes:

  • Checking visa availability,
  • Completing and filing Form I-485,
  • Attending biometric appointments,
  • Participating in interviews as mandated.

Adherence to USCIS guidelines and timelines is essential for successfully adjusting status. Derivative family members are also often expected to appear for interviews, highlighting the inclusive nature of the application process.

Applicants need to be aware of policies such as the 90-Day Rule, which implies that engaging in activities inconsistent with one’s nonimmigrant status within 90 days of entry could lead to a presumption of misrepresentation.

Applicants must navigate these steps with accuracy and truthfulness, as the importance of integrity in the process cannot be overstated. Those seeking permanent residency through adjustment of status are encouraged to maintain detailed records and seek guidance when necessary to facilitate a smooth transition to lawful permanent resident status.

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