On February 25, 2016, US CIS provided new guidance in the USCIS Policy Manual on the general policies and procedures for adjustment of status to lawful permanent residence.
Who Is Eligible to Adjust Status? In general, if you are in the US legally, and if you have a current visa petition filed by a relative or employer, you can file an application for a Green Card. Widows of US citizens living is the US may also apply, and fiancées can apply as soon as they get married to their original sponsor.
Who is Not Eligible to Adjust Status? In general, you are not eligible to apply for a Green Card
· If you entered the US without inspection by an immigration officer,
· If you have ever been employed in the US without authorization,
· If you are not in lawful status on the date of filing the application,
· If you did not maintain a lawful status since entry into the US,
· If you ever violated the terms of your nonimmigrant status.
You will not be able to adjust status in the US if you have engaged in any activities outside the scope of your entry visa. This includes working without CIS authorization or enrolling in school while on a visitor’s visa.
Overstaying your visa will also prevent you from Adjusting status in the US. CIS is especially strict about this because 40% of the illegal aliens now in the US entered legally but did not leave the US when their visas expired.
Some people who are not eligible to apply for a Green Card may be able to apply for a Waiver of the rules. This is usually true for immediate relatives of US citizens and Permanent Residents. However, it involves providing evidence that extreme hardship would result if the waiver is not granted. It may be very difficult to provide such evidence.
Evidence that must be submitted with your adjustment application in the US:
You will need your birth certificate. If you don’t have that, it may be possible to use secondary evidence, but first you must establish that the required primary document is unavailable or does not exist. That usually involves a statement from the Vietnamese authorities and sometimes they decline to cooperate.
Church and school records and old Ho Khau’s may be helpful when the birth certificate is not available. In addition to these, the applicant will probably need at least two affidavits from persons familiar with the birth and family of the applicant.
You will also need evidence of your legal admission to the US. This could be a copy of the Immigration entry stamp in the passport, or the I-94 Arrival/Departure card.
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Q.1. Can a fiancée apply for a Green Card on the basis of marriage to a US citizen who was not her original sponsor?
A.1. There is no way to do this. She will have to return to Vietnam to wait for a new spouse petition to become current and then apply for an immigrant visa at the US Consulate in Saigon.
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Q.2. I’m in the US on a B2 visa and I want to take this chance to improve my English by enrolling in an intensive English program. Is this allowed?
A.2. A visitor’s visa is just for a visit, not for study. If you enroll in an English language program, this would put you out of status and prevent you from applying for a Green Card in future.
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Q.3. I lost my I-94 card. Can I get a replacement?
A.3. Certainly. The CIS form I-102 is used to obtain a replacement Arrivals card. CIS charges $330. for processing this form.
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