Individual & Family Immigration FAQ

Overview of Topics

Explore our FAQs for comprehensive insights into individual and family-based immigration, covering topics such as temporary visas, green cards, and citizenship. Whether you want to know what to expect in your consultation, have concerns about prior violations, or need information on checking the status of your case, you will find helpful information in our FAQs.

Pre-Consultation Questions of Concern

Obtain and bring certified copies of your criminal record or history with you to your appointment. The attorney can review your record during your consultation but may need additional time to review the impact of your record on your eligibility for any specific immigration benefit.

Please bring your passport and all details relative to your entry into the U.S. If you entered with someone’s passport, bring that passport, if you have it. If you still have your boarding pass, bring that too. If you came over the border, prepare a brief summary detailing what happened, i.e. where you entered, when and how? Were you stopped by Border Patrol? Bring any records that you might have as well.

To be eligible to apply for a green card you must have been inspected and admitted to the U.S. This requirement can be satisfied even if you entered using someone else’s passport, as long as we can prove that it was actually you who used the passport. The use of that passport will, however, make you inadmissible and require that you obtain a special waiver to obtain a green card.

If you qualify as an “immediate relative” of a U.S. citizen (spouse, parent or minor), you may still qualify for adjustment of status so long as we can prove your entry into the U.S. If you do not qualify as an immediate relative of a U.S. citizen, then you may be required to leave the U.S. before you can be processed for a visa back in your home country. Departing the U.S. after accruing more than 180 days of unlawful presence can trigger bars to your return to the U.S., which can only be overcome by obtaining a special waiver or advanced permission to return, or by remaining out of the U.S. for the three- or 10-year period.

Working without papers by itself is not typically an obstacle to obtaining a green card unless you used a fake green card or someone else’s papers. Filing out an I-9 form where you misrepresented your authority to work, or worse, claimed to be an American citizen can be highly problematic and render you ineligible for almost all immigration benefits.

Claiming to be a U.S. citizen on any form can make you ineligible for nearly every form of immigration relief. Claiming to be someone who is not a U.S. citizen, while not as serious, will still make you inadmissible and require you to obtain a waiver forgiving you of this mistake. Such a waiver requires that you demonstrate extreme hardship to a U.S. citizen or green card holding family member if you are not allowed to remain in the U.S.

While identity theft is a crime, it is seldom prosecuted in the absence of the theft of money from the individual. It may however make you inadmissible and require that you obtain a waiver, which is a form of forgiveness, based on a demonstrated hardship to a qualifying relative.

Be sure to bring your DS-2019 (formerly IAP-66) to your consultation so that we can review whether you are truly subject or not to this requirement. Also, bring any details that you might have to demonstrate you have satisfied the two-year foreign residence requirement.

Entering the U.S. on a C or D visa typically makes you ineligible to apply for a green card here in the U.S. You will likely be required to depart the U.S. first before you can seek to obtain a green card, even if you are married to a U.S. citizen. However, if you have been unlawfully present in the U.S. for more than 180 days, you will be subject to a bar on returning. Always consult with an immigration attorney before departing the U.S. if you have been out of legal status for more than 180 days.

Individuals who enter the U.S. under the visa waiver program must depart the U.S. within 90 days of their arrival, otherwise they will be disqualified from future participation in the visa waiver program. Individuals who enter the country under this program are also generally prohibited from changing or adjusting their status here in the U.S. One important exception to this rule applies to immediate relatives of U.S. citizens. So, if after entering the U.S. you marry an American Citizen, you may still be eligible to adjust to green card status here in the U.S. without leaving. Similarly, if you are a U.S. citizen and your parents entered the country under the visa program with the appropriate intent to leave within the 90-day period and circumstances change that require them to stay, they too may adjust their status here in the U.S. and avoid departing the country, provided you can prove they entered with the appropriate intention.

General Consultation Questions

A consultation with either Attorney Carter or Attorney Lebeaux costs $250

A consultation typically takes 60 minutes, sometimes longer. If it runs longer, you will not be charged extra unless the attorney tells you in advance that you will need to pay extra for a longer consultation.

Yes, but availability may be limited depending upon the time of day you would like to have your consultation. Attorney Lebeaux schedules consultations from 9:00 am until approximately 4:00 pm; Attorney Carter from noon to approximately 7:00 pm.

Click the CONTACT US box on our website or call Carrie Russo at (508) 532-0628.

You can meet with us either in person at our office on Route 9 in Southborough, Massachusetts, or we can set up a Microsoft Teams call, if you prefer.

Filling out a questionnaire in advance of your consultation saves the attorney time and allows them to focus more time on your goals and questions.

Bring your completed questionnaire, your passport, your I-94 if you have one, and most importantly your spouse (if you are married to a U.S. citizen or Green Card holder).

The attorney will review your questionnaire to get up-to-speed on your situation, will ask a variety of questions about your immigration history and goals, and will assess what options you may have to achieve those goals. The attorney will also outline a solution for you (if one is available) and give you a realistic estimate of how much it will cost to pursue that solution. They will also explain to you what the odds are of you achieving your ultimate goals.

Paying in advance confirms that you are committed to the process of meeting with one of our attorneys and saves the attorney from having to collect your payment. This enables them to maximize their time with you focusing more on your goals and discussing your options with you.

So long as you notify us at least one hour before your appointment that you won’t be able to make it, we will gladly reschedule you without any further cost.

Yes, a friend can attend. We often have clients who bring their friends to see and introduce us to them. After the introduction is complete, we will ask your friend to leave the room so that we may speak confidentially with you. The presence of a third party in the room negatively impacts the attorney/client privilege, but sometimes cannot be avoided particularly if a translator is necessary. You may also consent to waiving the privilege in order for your friend to remain as we discuss your matter. Your spouse can always remain in the room, as, in addition to the attorney/client privilege, there also exists a privilege that protects communication between married couples and their legal counsel.

The attorney client privilege protects the confidentiality of anything that you tell the attorney without someone else present. Thus, if you were to tell the attorney that you committed a crime, that conversation would be completely protected. If someone else is in the room that confidentiality can be broken and both the attorney and the third party could be called to testify against you in a court of law to what you told them about your criminal history.

An engagement agreement is a basic understanding between you and us of what we’ve agreed to do for you, and what you have agreed to pay for our services. It also describes how you will pay us. It is a basic contract that helps to clarify the expectations of both parties up front.

Most cases we handle are quoted on a flat-fee basis. This is based on how much time it typically takes us to perform such a task. On some occasions we cannot estimate how much time it will take or anticipate complications that might significantly increase the scope of our services. In such instances we will often quote a fee range with a high and low number, which we are comfortable to commit to as a “quasi-flat fee.”

If at some point you become unhappy with us as your attorney, or we become unhappy with you as our client, it may be necessary for us to part ways. A disengagement agreement outlines the terms of our parting.

Sometimes we have a conflict of interest which prohibits us from representing you. For example, if we start a marriage case, and you and your spouse later separate or divorce, we cannot represent either one of you against the other because you have both consulted us as clients and we owe each of you the same duty and care. Other times, in the course of our discussions we may learn certain facts that make it unethical for us to represent you. In such a case we can explain the consequences of various options with you, including misrepresenting details on an immigration form, but cannot prepare or sign those forms, as we can only sign forms that contain truthful information.

Fee and Payment Related Questions

We accept credit cards for consultation fees only. We do not take them for process or filing fees.

No, we do not. While some employers provide legal service insurance to their employees as an added benefit, such policies typically cover basic services rendered and limit you to a narrow range of legal providers. We are not part of any network that accepts such insurance.

No, we do not accept credit cards for filing fees. Credit card companies charge us 2 to 3% of those fees which come directly out of our pocket. Given the significant filing fees involved in most immigration cases we require that you use the eCheck option on our payment portal and move funds from your checking account to your trust account with us. We then cut checks using your money to cover your filing fees without any additional charge for handling.

Document Gathering Questions

You can obtain a copy of your file from your prior attorney simply by requesting it. Rules of professional conduct require them to provide your records upon request, regardless of whether you owe them any money. If you choose to work with Carter Law Group, we will prepare an authorization form for you to sign and can request the file copy on your behalf.

You may request and obtain copies of applications and documents that you filed with USCIS and other government agencies by submitting a Freedom of Information Act request, also known as a FOIA request. Note that federal law does allow USCIS to redact (block out or conceal) certain types of information from copies that they provide in response to FOIA requests. Copies of some visa applications may also be requested from the Department of State through their own FOIA request process.

FOIA stands for Freedom of Information Act, a federal law enacted in 1967 that requires federal agencies to provide the public access to records, with certain exceptions for reasons such as personal privacy, national security, and law enforcement. To obtain records from a federal agency under FOIA, you must submit a request following the agency’s FOIA request policies. Find more information on how to make a FOIA request here.

There are two main ways to obtain criminal history reports in the U.S.: from the Federal Bureau of Investigation (FBI), or through a state criminal record search. The FBI collects arrest and criminal history information from all 50 states, and members of the public may request a copy of their FBI record by submitting a request with a fee and fingerprints. Find more information on Identity History Summary Checks (Rap Sheets) here.

In addition, each state also has its own process for requesting criminal history reports for arrests and criminal charges within that state. The FBI and state records will list basic details from all criminal arrests and charges in the U.S., but they will not provide all the information that USCIS or the State Department would require for an immigration case. Police reports and court docket sheets need to be requested directly from the police station and court that handled each case.

Each country has its own procedure for requesting a criminal history report. The U.S. Department of State provides guidance on how to request police and criminal records from each country in its U.S. Visa: Reciprocity and Civil Documents resource. U.S. consulates and USCIS will only accept foreign criminal records obtained using the procedures outlined in that resource.

Key Immigration Concept Questions

A visa is an endorsement placed within a passport that grants the holder official permission to enter the United States in a specific category for a particular period of time. Unlike a passport, which is issued by your home country, a visa is issued by the country that you are seeking to enter. There are two primary categories of visas: nonimmigrant visas, which allow someone to enter the U.S. on a temporary basis; and immigrant visas, which allows an individual to remain permanently in the U.S. (also known as a green card.) There are many different nonimmigrant visa categories, each of which corresponds to letters of the alphabet. Some allow employment, while most do not. Some permit multiple entries, while others might be limited to a single entry.

Citizens of most countries who enter the U.S. must first obtain a visa to come to the U.S. Exceptions to this general rule include citizens of Canada, under the North American Free Trade Agreement. In addition, 41 countries with good histories of their citizens returning home are eligible to participate in the visa waiver program. Please visit Visa Waiver Program Requirements to see if your country is on the visa-waiver list. Individuals from these countries may come to the U.S. without a visa for up to 90 days, so long as they register in advance for the program and have a round trip ticket to and from the U.S. Similarly, citizens of the U.S. may travel to participating countries without first having to obtain a visa.

A nonimmigrant visa is a temporary visa, which allows an individual to enter the U.S. for a specific time and purpose. An immigrant visa is a permanent visa, often referred to as a “green card” or “lawful permanent residence” which allows the individual to live and work in the U.S. on an indefinite basis. This card is typically valid for 10 years at a time and can be renewed provided the holder maintains their residence here in the U.S., files resident tax returns, and does not otherwise violate the laws of the United States. Find more information on how to renew your green card here.

Individuals who have had their green card for more than five years (three years if married to a U.S. citizen) may apply to become U.S. citizens. Use the Naturalization Eligibility Tool to determine if you are eligible to become a U.S. Citizen.

Nonimmigrant intent, a requirement for most types of nonimmigrant visas, is the intent to depart the U.S. at the conclusion of the permitted stay and to return to a foreign residence abroad. Nonimmigrant visas including B1/B2, F, J and M require that the noncitizen applicant prove they have a residence abroad that they do not intend to abandon. To prove this, applicants must have established ties to their home country, including family relationships, jobs, property ownership, or other significant reasons that would cause them to return to their foreign residence rather than remain in the U.S.

Immigrant intent is the intention to live in the U.S. permanently. USCIS and U.S. consulates abroad will deny visa applications that require nonimmigrant intent if they believe the noncitizen intends to live in the U.S. permanently, rather than to use the visa for its intended purpose and then depart. A person will be found to have immigrant intent if USCIS or the U.S. consulate believes the person will overstay their visa or will apply for a green card after entering the U.S.

A limited number of nonimmigrant visas allow the noncitizen to have dual intent, meaning both the intent to abide by the requirements of the nonimmigrant visa, but also the intent to immigrate to the U.S. in the future if possible. When applying for a visa that allows for dual intent, the applicant need not prove ties to their home country, and plans or actions that demonstrate an intent to remain in the U.S. would not be a reason to deny the visa. Visas that allow for dual intent include H-1, L, O-1, K, and R visas, as well as visas for dependent spouses or children of those visa holders.

An I-94 is an arrival/departure record that is generated each time a visa holder enters the United States, and in the past was stapled into their passport. The I-94 would note the day the individual arrived in the U.S., the category that they were admitted under; and the required date to depart. These records are now maintained digitally by the USCBP and can be found here. This site also allows you to print out a history of your arrivals and departures.

Apply for or retrieve a I-94 admission number or record (proof of legal visitor status) here. Insert your name, date of birth, country of citizenship and passport number to retrieve your most recent I-94 record. While at this site you can also access a travel history which can also be printed.

An I-797, also known as a Notice of Action, is issued in response to any petition or application filed with USCIS. It can be a receipt or can also be an approval notice. If the petition you filed included a request to change or extend your stay, Form I-797 will often include an updated I-94 which changes your status category and extends the time that you are permitted to remain in the U.S. Each I-797 includes a receipt number which corresponds to your individual filing. Use the Check Case Status tool to track the status of an immigration application.

Your I-94 controls how long you can remain the U.S. An individual must depart the U.S. on or before the date noted on their most recent I-94. Failure to depart within that period (in the absence of some other grant of permission or authority) may cause you to begin accruing “unlawful presence” and may result in penalties, such as disqualification from participating in the visa waiver program, being placed in deportation or removal proceedings, and if more than 180 days have passed, can even trigger bars on your ability to return to the U.S. in the future. If you have remained in the U.S. beyond your I-94 permission, always consult an immigration attorney before leaving the U.S. to make sure you understand the penalties that might apply to you upon departing.

“Status” in the immigration context refers to an individual’s legal position regarding their presence in the U.S. An individual might be in “legal” status, such as a citizen or a green card holder, possessing the right to live and work in the U.S. They might have a nonimmigrant or temporary status, such as a student, visitor, or religious worker. An individual might also be present in the U.S. as a refugee, asylee, or in some other special status that U.S. law provides, such as deferred action. Individuals who overstay their I-94, or who violate their status, are often considered to be “out of status.” Individuals who entered the country without inspection or without proper documentation are referred to as “undocumented,” meaning they have no official status here in the U.S. Even though someone may be undocumented or out of status, this does not mean they do not have rights and protections under the U.S. Constitution. Among these are the rights of children to receive a public education, and in some states undocumented individuals may be able to obtain a driver’s license. Click here see which states issue driver’s licenses to undocumented individuals.

A change of status is when an individual who entered the U.S. in one nonimmigrant status, seeks to change their status to another nonimmigrant status. For example, an individual might enter the U.S. on a B-2 visitor visa, and after arrival seek to change to F-1 student status so that s/he can pursue a full-time program of study at a U.S. college or university. They might also enter the U.S. in a dependent category, such as an L2 spouse and then seek to change to their own primary status, like F-1 student or an H-1B specialty occupation worker. Visit Change My Nonimmigrant Status for more information.

“Adjustment of Status” typically refers to an individual in nonimmigrant status who is seeking to adjust to immigrant or green card status (also known as lawful permanent residence) without having to depart the U.S. To be eligible to adjust status here in the U.S., an individual must typically be maintaining status at the time they file their application and have some underlying basis for obtaining green card status. The underlying basis could be a family-based petition filed on their behalf by a U.S. citizen or green card holding relative; or it could be an employment-based petition, either self-petitioned or sponsored by an employer. Other special programs or categories an individual might qualify for a green card here in the U.S., include, among others, those for certain investors, religious workers and refugees/asylees.

A green card, officially known as a Permanent Resident Card, is a permanent or immigrant visa/document issued by the U.S. government that grants the holder the permanent right to live and work in the U.S. and provides a pathway to U.S. citizenship after a specified period (typically three to five years). The green card, known as Form I-551 is typically valid for a maximum period of 10 years. Find out how you can renew your green card here. Individuals granted “Conditional Resident Status” based on marriage to a U.S. citizen where the couple has not been married for two years are typically granted on a “conditional” basis, which is valid for only two years. Prior to the expiration of the card, these individuals are required to either file a joint petition seeking to remove the conditions on their residence, or if the couple is no longer together, may seek a waiver of the joint filing requirement.

Individuals seeking a green card typically fall into two categories: “immediate relatives” of U.S. citizens (which are not subject to numerical limitations); and all others who are subject to limitations imposed by law. An “immediate relative” is the spouse, parent or minor child of a U.S. citizen and is not subject to any numerical limitation by law. Those who do not qualify as an “immediate relative” are subject to the limitations established through the “preference system.” This system allocates a finite number of visas each year through a variety of categories; some of which are family-based; others are employment-based. Family-based categories include those for adult sons and daughters of U.S. citizens; the spouses and minor children of permanent residents (green card holders); the unmarried adult children of permanent residents; and the siblings of U.S. citizens. Waiting lists due to numerical limitations in these categories can range from a couple of years to several decades. For more details on the employment-based preference system, go to [advance to FAQ Sections N/ O/P]

An “immediate relative” of a U.S. citizen is the spouse, parent or minor child of a U.S. citizen. It includes children adopted prior to their sixteenth birthday and stepchildren of U.S. citizens so long as the citizen and the child’s parent were married prior to the child’s 18th birthday. It also includes children born out of wedlock under certain circumstances.

A priority date is an individual’s place in line or queue when waiting for a green card under one of the family or employment-based preference categories. That date is established on the day a family petition (Form I-130), a PERM application (ETA9089), or an employment-based petition (Form I-140) is filed for an individual. Once a priority date is secured by the approval of the I-130 or I-140 petition, the beneficiary must wait until their priority date is within the cutoff period for their preference category as reflected in the visa bulletin published by the U.S. Department of State. Learn more about the visa bulletin and the current cutoff dates for both the family and employment-based preference categories here.

A “relative petition” is a petition filed by a U.S. citizen or green card holder to sponsor a member of their family for a green card. Form I-130, known as the “Petition for Alien Relative” is filed with USCIS. This petition is used for both those who qualify as an “immediate relative” of a U.S. citizen as well as those subject to the limitations of the preference system – including married and unmarried sons and daughters of U.S. citizens; siblings of U.S. citizens; and the spouse, minor children and unmarried adult children of green card holders.

An “employment base petition” is a petition typically filed by a U.S. employer, but in some instances may be filed directly by the beneficiary. Form I-140, known as the “Immigrant Petition for Alien Worker” is filed with USCIS to sponsor individuals as “extraordinary ability aliens”, “outstanding researchers and professors”, “multi-national managers and executives”, “advanced degree professionals”, “National Interest Waiver” candidates, “skilled” and “unskilled workers”, “religious workers”, and employment creation visas, among other categories.

Individuals seeking to determine where they stand in a particular preference-based queue should consult the Visa Bulletin published by the U.S. State Department each month. The Visa Bulletin establishes the cutoff dates which represents the front of the queue. This bulletin has four charts: two relate to family- based petitions, and two cover employment-based petitions. Each category (family and employment) has two charts. The first, entitled “Final Action Dates” is typically used if you are currently in the U.S. and are eligible for adjustment of status. The second, entitled “Filing Date” typically control green card processing outside the U.S., also known as consular processing. To complicate things further, each month USCIS indicates through a link contained in the DOS Visa Bulletin, which of the two charts should be used for Adjustment Applications to be filed here in the U.S. This is typically the “Final Action Date” chart, but not always. Because there are both overall limitations in each of the preference categories, as well as per country limitations, there are multiple columns within the Visa Bulletin which establish separate cutoff dates for India, China, Mexico, Philippines, and one for “all other countries” which applies to everyone else. The country line or queue that each individual falls under is based on the country of their birth, or the country of their spouse’s birth, if different (a concept known as cross chargeability). When consulting the chart first check your filing or preference category in the first column and then review the country column charts, if you don’t see your country of birth listed separately, then you fall under the “all other countries” list. If you see a “C” on the chart in your preference category that means that the category is current, meaning there is no waiting list in the month the bulletin covers. If there is a date listed, then your priority date listed on your approved I-130 or I-140 petition must be that date or earlier in order to proceed with your individual I-485 adjustment application or to commence consular processing through the Department of State’s National Visa Center.

No country is allowed more than 7% of the visas in each category, regardless of size, so huge countries like India and China get access to the same number of green cards as tiny countries like Jamaica or Tibet. Some smaller countries like Mexico and Philippines, are also impacted by virtue of the historically high levels of migration from those countries to the U.S., thus earning them their own special cutoff dates.

A green card, also known as “lawful permanent residence”, “resident alien” or “immigrant visa” allows you to live and work in the U.S. but is subject to conditions. Conditions might include a probationary period, typically extended to individual who get a green card based on a recent marriage, also known as “conditional resident status.” Green cards are also subject to forfeiture or loss if you don’t make the U.S. your residence and can also be taken away if you commit certain crimes. People often confuse green card status and citizenship, but those holding “green card” status must renew their status every 10 years, cannot vote or hold public office, and may be limited in terms of security clearances when working for the U.S. government. Individuals who have had their green cards for five years or more and have spent more than half of that time in the U.S. may apply for citizenship through a process known as “naturalization.” To be naturalized as citizens most applicants must first demonstrate an ability to read and write English, as well as demonstrate a personal attachment to our Constitution and form of government. For more information about naturalization visit here.

Maintenance of Status Questions

“Status” in the immigration context refers to an individual’s legal position regarding their presence in the U.S. If you are not currently in legal status, i.e. maintaining a nonimmigrant or immigrant visa, or holding some hybrid status like TPS, DACA, Refugee or Aslyee, then you are “out of status” and may be accruing “unlawful presence” which may trigger bars or penalties on your ability to return to the U.S. in the future. Individuals who overstay their I-94, or who violate their status, are often considered to be “out of status.” Individuals who entered the country without inspection or without proper documentation are referred to as “undocumented,” meaning that they have no official status here in the U.S. Even though someone may be undocumented or out of status does not mean they do not have rights and protections under the U.S. Constitution. Among these are the rights of children to receive a public education, and in some states the undocumented may be able to obtain a driver’s license. Click here see which states issue driver’s licenses to undocumented individuals.

A change of status is when an individual who entered the U.S. in one nonimmigrant status, seeks to change their status to another nonimmigrant status. For example, an individual might enter the U.S. on a B-2 visitor visa, and after arrival seek to change to F-1 student status so that s/he can pursue a full-time program of study at a U.S. college or university. They might also enter the U.S. in a dependent category, such as an L2 spouse and then seek to change to their own primary status, like F-1 student or an H-1B specialty occupation worker. Visit Change My Nonimmigrant Status for more information.

Individuals seeking to transfer their employment from one company to another without changing their nonimmigrant classification are typically processed as “transfers.” Most common of transfers is an H-1B employee transferring their employment from one company to another. As long as the employee can produce paystubs from their previous employer which are not more than 60 days old, they can transfer their employment to a new employer without leaving the U.S., and even without waiting for the petition to first be approved before starting work for the new employer.

Individuals in status are permitted to remain in the U.S. up until the expiration date contained on their I-94. If they wish to remain in the U.S. beyond that date they need to file to “extend” their stay or status. If their extension petition arrives at USCIS on or before the date their I-94 expires, they can remain in the U.S. until their petition is processed and approved. In certain nonimmigrant categories they may also be allowed to continue working. Individuals who miss the deadline for filing their extension may seek acceptance of their late petition under unique circumstances if they can demonstrate the delay was through no fault of their own, they are not in removal proceedings, and have not otherwise violated their status in any way. To avoid gaps in status petitions may, under certain rare circumstances, be processed on a nunc pro tunc (meaning retroactive) basis. Extensions without some form of change or amendment should generally not be submitted more than 180 days in advance of their expiration.

Failure to deliver an extension petition to USCIS on or before the status date expiration can result in an individual’s legal status being placed in “limbo” precluding them from rights and benefits accorded to many timely filed extensions. Such benefits may include the right to remain in the U.S. for up to 240 days or until the petition is adjudicated, and often permits the individual to remain working until such date. Late petitions may be accepted in certain circumstances, and Premium Processing is often required to get a faster resolution before the individual accumulates extended periods of “unlawful presence.” For more details on premium processing see Request for Premium Processing Service | USCIS.

Missing the deadline to extend your status here in the U.S. is not unusual and can be a serious problem. Individuals sometimes confuse the end date on their visa with their authorized period of stay (which it is not). U.S. Customs and Border Patrol (CBP) no longer issues physical I-94s at the time of arrival forcing individuals to go on-line to discover their authorized period of stay. To make matters worse, CBP and USCIS sometime include a 10-day departure period, which is not status on Form I-797. This confuses individuals and their employers about when their time is actually up. If you are unclear about when your status expires, or whether the petition you are about to file will be timely or late, please consult an experienced immigration attorney to make sure you aren’t putting yourself or your family at risk for being out of status. In certain instances, USCIS may accept late petitions, and may even approve the petition on a retroactive basis under their nunc pro tunc policy, though this is a unique and unusual form of relief.

Most individuals who submit an extension petition prior to the expiration of their stay are entitled to remain in the U.S. up until the time their petition is processed. Most nonimmigrant categories which carry the authority to work also permit the individual to continue working for up to 240 days, or until their petition is decided. Employers of individuals eligible for the 240-day rule can rely upon this rule to continue employing their nonimmigrant worker.

An individual who overstays their 90-day visa waiver entrance are automatically disqualified from future participation in this program. Other nonimmigrant visa holders including B1/B2, F-1 H-1B, L-1 just to name a few, lose the benefit of these visas and can have the physical visa in their passport revoked and future admissions based on those stamps denied. Failure to file a timely extension may require that an individual depart the U.S., return to their home country to secure a new visa, and then return to the U.S. Certain individuals (not otherwise exempt from accruing unlawful presence) begin accruing “unlawful presence” on day one following the expiration of their I-94. Individuals who leave the U.S. after having accumulated 180 to 364 days of unlawful presence are barred from returning to the U.S. for three years; those who accrue 365 days or more are barred from returning to the U.S. for 10 years.

A person is “unlawfully present” in the U.S. if they have either entered the country without being inspected, have remained in the U.S. after their period of authorized stay has expired, or have otherwise been determined to have violated their status. Certain individuals (not otherwise exempt from accruing “unlawful presence”) begin accruing “unlawful presence” on day one following the expiration or other determination they have violated their status. Individuals who leave the U.S. after having accumulated 180 to 364 days of “unlawful presence” are barred from returning to the U.S. for three years; those who accrue 365 days or more are barred from returning to the U.S. for 10 years. While waiver of these bars are available in certain situations, they can be difficult to obtain.

“Adjustment of Status” typically refers to an individual in nonimmigrant status seeking to adjust to immigrant status, such as that of a lawful permanent resident (also known as a “green card” holder). To be eligible to adjust status here in the U.S. an individual must typically be maintaining status at the time they file their application and must have some underlying basis for obtaining green card status. That underlying basis could be a family-based petition filed on their behalf by a U.S. citizen or green card holder; or could be an employment-based petition. There are also a variety of other special programs or categories under which an individual might qualify for a green card, including those for certain investors, religious workers, and refugees/asylees, just to name a few. Programs subject to numerical limitations often have waiting lists, which for some countries can be years or even decades long.

The Diversity Immigrant Visa Program (DV Program) makes up to 50,000 immigrant visas available annually, drawn from random selection among all entries of individuals from countries with low rates of immigration to the United States. The DV Program is administered by the U.S. Department of State (DOS). Most lottery winners reside outside the United States and immigrate through consular processing and issuance of an immigrant visa. To learn more, visit the U.S. Department of State’s website.

Most visa holders are required to notify USCIS within 10 days of moving or changing their address. This includes individuals with green cards. You may update your address online at the USCIS website here. The system will prompt you to enter the necessary information and will generate a final change of address confirmation. Make sure you print this confirmation page and save a copy for your records. If you have a pending case with USCIS, the online system will also give you the option to update your address for all pending applications or petitions.

Unlawful Presence Questions

A person is “unlawfully present” in the U.S. if they have either entered the country without being inspected and admitted or paroled by an immigration official; when they have remained in the U.S. after their period of authorized stay has expired; or have been determined by USCIS to have violated their status. Certain individuals (not otherwise exempt from accruing “unlawful presence”) begin accruing “unlawful presence” from the date their I-94 expires, or the date they are determined to be unlawfully present. Individuals who leave the U.S. after having accumulated 180 to 364 days of “unlawful presence” trigger a bar, which prohibits them from returning to the U.S. for three years; those who accrue 365 days or more trigger a 10-year bar on returning to the U.S. The bar on re-entry may be waived under certain circumstances based on hardship of a qualifying relative.

A person starts accumulating days of “unlawful presence:” a) when they enter the United States without inspection (without presenting themselves to an immigration official); b) when their period of authorized stay expires, and they remain in the U.S.; or c) when it is determined by USCIS that they have violated their status. Your period of authorized stay is noted on your I-94 record. Your I-94 record can be obtained either here on the website for Customs and Border Patrol or on an I-797A Notice of Action from USCIS.

There are several exceptions to the accrual of “unlawful presence.” Children under the age of 18 do not accrue “unlawful presence.” Individuals admitted as F-1 students for “the duration of status”, signified by a D/S on their I-94” do not accrue “unlawful presence” until a determination has been made that they are out of status. Those admitted or paroled into the U.S., who have filed a timely application to extend or change their status, and who have not worked without authorization, do not accrue “unlawful presence” for up to 120 days while their application is pending. Recipients of deferred action, and DACA holders, do not accrue “unlawful presence.” Asylum applicants also do not accrue “unlawful presence,” provided that their application is genuine. Certain victims of domestic violence and human trafficking also do not accrue “unlawful presence.”

When a person has accrued more than 180 continuous days but less than one year of “unlawful presence,” they are barred from returning to the U.S. for three years following their departure from the U.S. This is called the three-year bar. When a person has accrued 365 or more continuous days of “unlawful presence,” they will be barred from returning to the U.S. for ten years once they depart the U.S. This is called the 10-year bar.

The three- and 10-year bars are only triggered upon departure from the United States without advance parole. Some individuals who have been unlawfully present in the U.S. will not be affected by those bars, for example immediate relatives of U.S. citizens who can apply for their green cards inside the U.S. even if their authorized stay has expired. As they do not need to depart the U.S. as part of their green card application, they will not trigger the bar.

The three- and 10-year bars will not impact all types of immigration cases and applications. If the three- or 10-year bar does apply to you, you may be able to request a waiver from USCIS. If approved, that waiver would serve to grant you an exception to the three- or 10-year bar to reentering the United States. The requirements for the waiver depend on whether you are seeking a green card, or a nonimmigrant visa. To qualify for the waiver in order to obtain a green card, you must have a spouse or parent who is a U.S. citizen or green card holder, and you must establish that the spouse or parent would suffer “extreme hardship” if the bar is not waived in your case. To qualify for a waiver in order to obtain a nonimmigrant visa, the U.S. consulate will consider all relevant factors to decide if a waiver is appropriate in your situation. These could include the seriousness of your prior immigration law violation, the reasons you wish to travel to the U.S., and the impact your travel might have on U.S. interests.

Leaving the U.S. with a valid advance parole or TPS travel document does not trigger the “unlawful presence” bars to admissibility. Travelling with advance parole or a TPS travel document can be a useful strategy for some cases, to allow a person to apply for a green card when they would otherwise not be eligible to do so.

Departing the United States Questions

Noncitizens must depart the U.S. when their nonimmigrant status expires, or when they fail to maintain their status because they are no longer working or studying as required. If you are deemed to be “out of status” your ability to change or extend your status will likely be limited. Additionally, most nonimmigrants over the age of 18 who overstay their I-94 expiration dates will begin to accrue unlawful presence in the U.S. If you have accrued more than 180 days of unlawful presence you will be barred from returning to the U.S. for three years, or ten years if more than 365 days of unlawful presence has accrued. This penalty is not triggered unless you depart the U.S. It is also important to note that some noncitizens who apply for a green card based on family membership or employment sponsorship may be exempt from the lawful status requirement under certain circumstances. If you have questions about your status expiring or your options, please contact us for a consultation.

How long you have to depart depends on the nonimmigrant status you hold. If you came to the U.S. on a B-1 or B-2 visitor’s visa, you must depart the U.S. by the expiration date of your I-94 (or request an extension prior to that expiration) to avoid falling out of status and begin accruing unlawful presence. However, most student and employment-based green cards allow for grace periods up to 60 days after ending your employment or studies before you need to depart.

While most nonimmigrant visa (NIV) holders have no formal grace period to depart the U.S., certain NIV categories do provide a grace period. For example, foreign student who complete their educational programs have 60 days to depart the US. H-1B visa holders, on the other hand, are typically permitted a 10-day departure period. In the event of a layoff, if the employee is able to secure new employment within 60 days of their last paycheck, they may able to transfer their employment from one company to another. In the absence of any specific grace period, which is the rule for most NIV categories, we recommend that you depart the U.S. by your expiration date, or as soon thereafter as reasonably possible – which in our view is within a week to 10 days.

In general, individuals are not permitted to work during a grace or departure period. However, exceptions apply for nonimmigrants with work visas when they file a timely extension application or when a new employer files a petition for them during any grace period. In those limited circumstances, nonimmigrants may continue or resume their employment.

Whether you may return to the U.S. after departing will depend on several factors. First, you will need a valid visa stamp in your passport. However, if you have violated the terms and requirements of that visa, either by remaining past your authorized stay or working without authorization, you may be refused readmission to the U.S. and have your visa cancelled. Second, if you were deemed to be “unlawfully present” in the U.S. for 180 days or more prior to your departure, you may be barred from returning to the U.S. for three-years; 10 years if you were unlawfully present for a year or more before departing. If you have questions about returning to the U.S., please contact us for a consultation to discuss your specific situation.

Nonimmigrant/Temporary Visas Questions

Nonimmigrant visas allow citizens of other countries to enter the United States temporarily for specific purposes including tourism, education, or employment. They do not grant permanent residency or citizenship. There are many different categories of nonimmigrant visas, each with its own authorized uses and set of requirements to apply. The duration of authorized stay also varies depending on the visa type. With some important exceptions, nonimmigrant visas require applicants to demonstrate nonimmigrant intent, which is the intention to depart the U.S. and return to their home country at the conclusion of their permitted period of stay. This demonstration is in addition to all other necessary eligibility requirements for each specific visa category.

Citizens of most countries who enter the U.S. must first obtain a visa stamp or foil to come to the U.S. Exceptions to this general rule include citizens of Canada, under the North American Free Trade Agreement. In addition, 41 countries with good histories of their citizens returning home are eligible to participate in the visa waiver program. Please visit the Department of Homeland Security’s Visa Waiver Program Requirements here to see if your country is on the visa-waiver list. Individuals from these countries may come to the U.S. without a visa for up to 90 days, as long as they register in advance for the program and have a round-trip ticket to and from the U.S. Citizens of the U.S. may similarly travel to participating countries without first having to obtain a visa.

Where you apply for a nonimmigrant visa depends on the type of visa you are seeking. For employment-based nonimmigrant visas, including H, L, and O visas, the employer must first submit a petition to U.S. Citizenship and Immigration Services (USCIS). Once that petition is approved, the applicant must obtain a visa foil or stamp from a U.S. Consulate abroad. To obtain that foil/stamp an individual must submit Form DS-160 to the U.S. Consulate in their home country. For other types of nonimmigrant visas, (including tourist visas and student visas) an application can be made directly to the U.S. Department of State and consulate abroad, bypassing USCIS. In addition, there are some exceptions for Canadian citizens, who may apply for certain types of nonimmigrant statuses at a U.S. port of entry, without having first applied to USCIS.

Nonimmigrant intent, a requirement for most types of nonimmigrant visas, is the intent to depart the U.S. at the conclusion of the permitted stay and to return to a foreign residence abroad. Nonimmigrant visas including B1/B2, F, J and M require that the noncitizen applicant prove they have a residence abroad that they do not intend to abandon. To prove this, applicants must have established ties to their home country, including family relationships, jobs, property ownership, or other significant reasons that would cause them to return to their foreign residence rather than remain in the U.S.

Immigrant intent is the intention to live in the U.S. permanently. USCIS and U.S. consulates abroad will deny visa applications that require nonimmigrant intent if they believe the noncitizen intends to live in the U.S. permanently, rather than to use the visa for its intended purpose and then depart. A person will be found to have immigrant intent if USCIS or the U.S. consulate believes the person will overstay their visa or will apply for a green card after entering the U.S.

A limited number of nonimmigrant visas allow the noncitizen to have dual intent, meaning both the intent to abide by the requirements of the nonimmigrant visa, but also the intent to immigrate to the U.S. in the future if possible. When applying for a visa that allows for dual intent, the applicant need not prove ties to their home country and plans or actions that demonstrate an intent to remain in the U.S. would not be a reason to deny the visa. Visas that allow for dual intent include H-1, L, O-1, K, and R visas, as well as visas for dependent spouses or children of those visa holders.

To apply for a B-1 business visitor visa, applicants must submit Form DS-160 to the U.S. Department of State, together with an application fee. The applicant must then schedule an interview at a U.S. Consulate abroad. At the interview, the applicant will need to explain the purpose of the proposed travel, provide any relevant documentation to that purpose, and prove their ties to their home country and nonimmigrant intent.

Individuals in the U.S. on a B-1 visa are authorized to meet with business associates, attend conventions or conferences, settle an estate, negotiate contracts, or participate in short-term trainings. An individual with a B-1 visa is not authorized to work in the United States.

To apply for a B-2 tourist visitor visa, applicants must submit a DS-160 application to the U.S. Department of State, together with an application fee. The applicant must then schedule an interview at a U.S. Consulate abroad. At the interview, the applicant will need to explain the purpose of the proposed travel, provide any relevant documentation to that purpose, and prove their ties to their home country and nonimmigrant intent.

Permissible uses of the B-2 visa include tourism, visiting with friends or relatives, receiving medical treatment, participating in events hosted by fraternal, social, or service organization, participation by amateurs in musical, sports, or similar events or contests, and attending a short recreation course of study, which is not for credit towards a degree.

No, individuals in the U.S. with a B-2 visa are not authorized to work.

An E-2 treaty investor visas allow nationals from certain countries who have reciprocal treaties with the U.S. who are investing a substantial amount of capital in a U.S. business to come to the U.S. to manage and oversee their investment. Certain employees of such a person or a qualifying organization may also be eligible for an E-2 investor visa. The E-2 visa holder must have at least a 50% ownership of the enterprise and must enter the U.S. to develop and direct the investment enterprise. E-2 visas are issued in increments of not more than two years, with no limit to the number of extensions available.

An E-1 treaty trader visa allow nationals from certain countries who have reciprocal treaties with the U.S. to enter the U.S. to engage in the trade of goods or services between their home country and the U.S. Some employees of treaty traders are also eligible for E-1 visas. E-1 visas are issued in increments of not more than two years, with no limit to the number of extensions available.

To see a list of the countries eligible to participate in the treaty trader program, the treaty investor program, or both please visit the U.S. government’s list of Treaty Countries.

E-3 visas are only available to nationals of Australia who are coming to the U.S. to perform services in a specialty occupation. A specialty occupation is one that usually requires at least a bachelor’s degree in a specific field for entry into the occupation. The E-3 visa is very similar to an H-1B, with one important difference — there is no yearly limit on the number of E-3 visas available. E-3 visas are issued in two-year increments, with no limit on the number of extensions available. Spouses and minor children of E-3 visa holders are also eligible for dependent visas.

F-1 visas are used for full-time studies at an accredited college, university, seminary, conservatory, academic high school, elementary school, or language training program.

To qualify for an F-1 visa, you must be accepted at a school that has been approved by the Department of Homeland Security through its Student and Exchange Visitor Program (SEVP). The school will then register you in the Student and Exchange Visitor Information System (SEVIS) and issue you an I-20 Form. You will then use that I-20 to apply for an F-1 visa at a U.S. consulate abroad, which will require you to submit a nonimmigrant visa application online and to attend an interview at the consulate. For more details on the requirements to obtain a student visa please visit: Student Visa (state.gov). Alternatively, if you are already in the United States in another type of nonimmigrant status, you may apply to USCIS to change your status to F-1 student. For more details on changing to student status in the U.S. visit: Students and the Form I-20 | Study in the States (dhs.gov)

You may be authorized to work for some of the time that you are in the U.S. with F-1 status. After one full academic year at a college or university, an F-1 student may apply for up to 12 months Optional Practical Training (OPT), which would provide work authorization for employment that relates to the student’s major or concentration. Students who complete certain degrees in Science, Technology, Engineering or Mathematics (so called STEM degrees) may be eligible for an extension of an additional 24 months of OPT. In addition, if your field of study requires practical training, then your school program may also authorize you to perform Curricular Practical Training (CPT) as part of the degree program, but the amount and type of CPT a student performs may impact their eligibility to also receive OPT. Finally, an F-1 student may also be eligible for work authorization based on unforeseen severe economic hardship, or if your home country is experiencing an emergency.

J visas are for exchange visitors who will come to the U.S. to teach, lecture, study, research, or consult. The J visa program is designed to promote exchange of people, as well as ideas, skills and knowledge in education, arts and sciences. J visas are used in many differed circumstances, including for professors or scholars, medical students, teachers, and even au pairs and camp counselors. Only State Department-designated sponsors are authorized to issue the required Certificate of Eligibility for Exchange Visitor (J-1) status (Form DS-2019), which is the basic document supporting an application for a J-1 visa. A list of potential program sponsors can be found here.

K visas are for fiancés/fiancées of U.S. citizens, and their children. To obtain a K visa, the U.S. citizen must file a petition with USCIS documenting the relationship and confirming that the couple intends to marry within 90 days of the noncitizen’s arrival to the U.S. So long as the couple marry within that 90-day period, the noncitizen spouse can then apply for a green card under the adjustment of status process.

General Family Immigration Questions

For purposes of U.S. immigration, an “immediate relative” of a U.S. citizen is a spouse, parent, or child under the age of 21.

“Immediate relatives” enjoy many benefits in the U.S. immigration system. First, there is no yearly limit to the number of green cards that may be issued to immediate relatives. This means there is never a waiting list of cases for immediate relatives of U.S. citizens. While immediate relatives will still need to wait for USCIS to process their application, that is the only wait involved, as an unlimited number of green cards are available for this group. In addition, immediate relatives who wish to apply for a green card inside the U.S. are exempt from some of the requirements that apply to most all other green card applicants: they do not need to have continuously maintained lawful status in the U.S. to be eligible, and having worked without authorization will not disqualify them. This means that an immediate relative who stayed in the U.S. past the expiration date of their authorized stay, or who worked without having authorization, is still eligible for a green card based on their U.S. citizen relative’s petition.

The immigration law defines different types of family relationships and assigns a yearly allotment of green cards for each type of relationship. This is called the preference system. There are four main family preference groups, numbered from F1 to F4. The groups are as follows:

  • F1: Unmarried adult children of U.S. citizens
  • F2: Spouses, minor children, and unmarried adult children of green card holders
  • F3: Married adult children of U.S. citizens
  • F4: Siblings of U.S citizens.

Each month, the U.S. Department of State publishes a visa bulletin that lists the cut-off date for green cards for each category, based on each case’s priority date and the remaining yearly allotment of green card visas in each category. The immigration laws also impose a per-country limit on green cards. This means that some countries with large populations and high levels of immigration (namely Mexico, India, China, and the Philippines) to the U.S. have longer waiting lists for their green cards. Explore the Visa Bulletin and see the cutoff dates in action here.

For immigration purposes, a child must be unmarried and under the age of 21 and includes biological children, stepchildren when the marriage creating the relationship occurred before the child’s 18th birthday, and adopted children when several requirements are met.

You must be 21 or older to petition for a parent. You may petition for a biological parent, a stepparent (provided that your stepparent married your biological parent prior to your 18th birthday), or your adoptive parent, if several requirements are met.

Yes, both green card holders and U.S. citizens can sponsor adult children, over the age of 21. However, only U.S. citizens may sponsor married adult children.

Yes, U.S. citizens may sponsor their siblings for green cards.

A priority date is assigned to each family member petition filed with USCIS. The priority date is the date that USCIS receives the petition, and it marks that petition’s spot in line in the family preference system. Each month, the U.S. Department of State (DOS) issues a visa bulletin listing the priority date cut-off for each preference category. Only cases with priority dates before that cut-off are eligible for a green card for the corresponding month of the visa bulletin.

Your case is assigned a priority date once USCIS receives your I-130 visa petition for your relative. Your priority date will be listed on the receipt notice that USCIS sends after accepting the petition for processing.

How long you will wait for your priority date to be reached will depend on which preference category applies, and which country you are from. The current timelines range significantly, from approximately 3.5 years for spouses of green card holders from most countries, to over 20 years for siblings of U.S. citizens from countries with high levels of immigration to the U.S. To check the status of your priority date, click here.

Documenting Family Relationships

It depends. With some exceptions, a foreign marriage will be valid in the U.S. if it is a legal marriage in the country where it was performed. To determine if a foreign marriage is valid for U.S. immigration purposes, the immigration agencies consult the Department of State’s Visa Reciprocity Schedule, which details how to document marriages from other countries. When a customary marriage is valid in the country where it was performed, it will also need to be registered with the civil authorities, as described in the Visa Reciprocity Schedule.

Sometimes. If proxy marriage is a legal marriage in the country where it was performed, such a marriage will be recognized as valid in the U.S. as long as the couple has met in person following the marriage.

Yes, same-sex marriage is legal in the U.S., and the USCIS will recognize a same-sex marriage from another country as long as the marriage is valid in the country where it was celebrated.

Traditional marriages will be valid for U.S. immigration purposes if the marriage was legally binding in the country where it was performed, and if the couple can produce the documentation listed in the U.S. Department of State’s Visa Reciprocity Schedule.

If your birth was registered more than one year after your birth, the USCIS will want to see additional proof of your birth and identity, because they may doubt the reliability of such late-registered birth certificate. Additional proof of birth and identity can consist of hospital or medical records; religious records; school records; or affidavits from individuals who have personal knowledge of the facts of your birth, such as your parents.

If your birth certificate does not list your name, or only lists part of your name or your parents’ names, the USCIS will want to see additional evidence of your birth. Such evidence may include hospital or medical records; religious records; school records; or affidavits from individuals who have personal knowledge of the facts of your birth, such as your parents.

If you are hoping to obtain immigration status through a second or subsequent marriage, then the U.S. immigration agencies will require you to prove the termination of any prior marriage, whether by final divorce or the death of the prior spouse. In the case of a divorce, you will need to produce a divorce certificate, issued according to the polices detailed in the U.S. Visa Reciprocity Schedule. If your divorce has not yet been registered, you should check that resource to ensure that your divorce certificate is one that USCIS will recognize.

That depends if you are the mother or the father. The U.S. immigration agencies do not require any additional evidence to prove the mother-child relationship of a child born out of wedlock. However, applicants requesting immigration benefits based on a father-child relationship when the child was born out of wedlock will need to provide additional evidence. For father-child cases, you will need to submit proof the child was ‘legitimated’ under the law of the country of birth before the child turned 18, or evidence that a genuine parent-child relationship existed before the child turned 21. This could be evidence that the father and child lived together, the father supported the child, or the father otherwise showed a continuing parental interest in the child.

There are several limitations and considerations at play when seeking immigration benefits based on an adoption. If you have not yet adopted a child, please speak with our office first. Just because an adoption is legally valid within the country where it took place does not mean it will be valid for U.S. immigration purposes. However, for a visa petition for an adopted family member, the U.S. immigration agencies will require the adoption occur before the child turned 16, and proof that the adopted parents had legal and physical custody of the child for a least two years before filing the petition. There are also avenues to adopt children from other countries when the parents have not yet lived with the child. This process is complicated, with the first question being whether the foreign country where the child lives is a member of the Hague Adoption Convention. For more details on the Hague Convention click here.

A stepchild-stepparent relationship is valid for immigration purposes if the marriage between the natural parent and the stepparent occurred before the child turned 18.

Marital Bonafides Questions

A couple has a bona fide, or genuine, marriage as long as they did not marry solely for immigration purposes or to evade immigration laws. Because immigration laws allow for lawful permanent residents and green card holders to petition for immigration benefits for their spouses, the U.S. immigration laws require such applicants to prove that the relationship is true and bona fide, and not just for immigration purposes. Many immigration officers assume that most marriages are fake and the couple is not actually a couple. When applying for immigration benefits based on marriage, applicants must prove their relationship is truly legitimate in order to be successful.

Married couples must file their taxes either as married filing jointly or married filing separately. Filing taxes as Head of Household or Single while simultaneously filing a marriage-based application with the U.S. immigration agencies will lead to serious problems for the immigration case. Immigration officers will question why the couple is telling the IRS they are single or living apart from their spouse, while also maintaining that they are married and living together for their immigration case.

If you are married for fewer than two years when the green card is approved, then you will be issued a two-year conditional green card. When that card is expiring, you will again need to prove to USCIS your marriage was valid, so you should keep evidence of the validity of the marriage for at least that long. Moreover, it is prudent to retain at least some evidence of the validity of all marriages until you become a U.S. citizen. USCIS may question the validity of any marriage, even ones that had no connection to your immigration case and deny immigration benefits if they find that you ever entered into a relationship with the intention of evading U.S. laws.

Yes, USCIS may look at your social media accounts. If your social media account lists information that conflicts with the USCIS petition, USCIS may doubt the truthfulness of your marriage. It is important that any public social media accounts be up-to-date and that they do not conflict with the information in your marriage petition.

Yes, USCIS may come to your home or talk to your neighbors. USCIS does not take this step in most cases, but will send out investigators in some situations, especially when the agency doubts the truthfulness of the marriage. Neither you nor your neighbors are required to respond to investigators unless they have a warrant, but if you refuse to speak with them, USCIS may use this as an additional reason to doubt your marriage is bona fide and legitimate.

USCIS issues conditional resident status to noncitizens who obtain their green cards through marriage and who have been married for fewer than two years as of the date the green card is approved. Conditional resident status is valid for two years. In the 90-day period leading up to the expiration of the two-year conditional green card, the couple must submit a new application to USCIS to remove the conditions of the green card status and obtain a 10-year green card. Usually, this is done by submitting additional evidence of the bona fide or true nature of the marriage. However, if the couple separates during that two-year period, the non-citizen spouse must instead submit an application requesting the joint filing requirement be waived for a recognized reason.

If USCIS determines that you ever entered into any marriage solely to get a green card or other immigration status, USCIS will deny any future marriage petition, even if the later marriage is valid. This will apply even if you never submitted any immigration application based on the first marriage. If you file any application with USCIS, you may need to prove the validity of any prior marriage with a U.S. citizen or green card holder.

This depends on the specifics of your situation. If you separate before the initial green card application is approved, your green card might still be approved if you are still legally married (not yet divorced); you can prove your marriage was genuine; and the U.S. citizen spouse continues to cooperate with providing documentation of their finances. If you divorce before the initial green card application is approved, or if the U.S. citizen spouse will not continue to provide documents for the case, then USCIS will deny your green card application for failing to meet the requirements of that type of process. On the other hand, if you separate or divorce after the conditional two-year green card is issued, you do have options to apply on your own to remove the conditions on your green card and receive the 10-year card, without support from the U.S citizen spouse.

You must apply to remove the conditions on your residence by the expiration date of your 2-year conditional residence card. See USCIS for details on how to remove the conditions on your residence.

No, you may apply for and obtain the 10-year card even if you separate from or divorce your U.S. citizen spouse. To do this, you must prove that you entered the marriage in good faith; your removal from the U.S. would cause you extreme hardship; or you entered the marriage in good faith but your former spouse subjected you to battery or extreme cruelty.

No, you do not need to stay in an abusive relationship to obtain the 10-year green card. You may apply on your own by showing one of three options: that you entered the marriage in good faith; removal form the U.S. would cause you extreme hardship; or that you entered the marriage in good faith but your former spouse subjected you to battery or extreme cruelty.

Adjustment of Status Questions

Adjustment of status is the process for individuals who are already in the United States to obtain a green card without departing the country. This is generally only available for individuals who were inspected and admitted to the U.S. and who have continuously maintained lawful status since their entry. However, immediate relatives need only show the lawful entry. Applicants who are not inside the United States or who are not eligible for adjustment of status must instead apply for their green card status through consular processing by appearing at an interview at a U.S. Embassy or consulate abroad. For more information on Consular Processing visit the NVC website.

The Form I-485 requires a great deal of information to confirm the applicants personal eligibility for a green card and to allow USCIS to flag any areas of concern. The form also asks dozens of yes or no questions that relate to possible reasons to deny a green card application based on the inadmissibility sections of the Immigration and Nationality Act. While answering ‘yes’ to one of those questions does not necessarily mean that your case cannot be approved, we recommend that you contact our office for a consultation if you think you may need to answer ‘yes’ to any of those questions.

Possibly. Some J-1 visas holders are subject to a two-year foreign residence requirement. Noncitizens who are subject to that requirement must prove that they spent at least two years in their home country after completing their J-1 stay before they may apply for a green card, immigrant visa, H or L visa.

Even if your record has been sealed, it must be disclosed to USCIS. This may even require that your record be unsealed so that you can obtain the required documents to submit to USCIS.

This may be a problem. A noncitizen who entered the United States as a crewman is not eligible to adjust status inside the U.S. and would instead need to apply for an immigrant visa at a consulate abroad, if eligible. D visas are for crewmembers, so if you last entered the U.S. with a D visa, you are not eligible to apply for adjustment of status. C visas are transit visas that can be used for various purposes including for individuals transiting the U.S. to join the crew of a vessel. If your C visa indicates that its purpose is to allow you to join a crew, you are also ineligible to adjust status inside the U.S.

Yes, you may apply for adjustment of status even though your I-130 or I-140 indicated that you would apply for an immigrant visa in your home country instead. In this scenario, you should notify the National Visa Center of the change in plan. If your situation is the opposite (you said on the I-130 or I-485 that you would adjust status, but now wish to consular process), you must first file an I-824 application with USCIS, for USCIS to send your approval notice and file to the National Visa Center.

If your children and spouse are in the United States when you apply for adjustment of status, they may also apply for adjustment of status as long as they can also show they are eligible, for example by showing they were inspected and admitted into the U.S., and they have maintained lawful nonimmigrant status since arriving. If your children and/or spouse are outside the U.S. when you apply for adjustment of status, they will need to wait until your green card is approved before they may apply for an immigrant visa at a U.S. consulate abroad.

Any spouse or child acquired before your green card application is approved may also apply for adjustment of status as a derivative of your case. However, any spouse or child acquired after your green card is approved will need to be processed separately through a family-based I-130 petition.

Follow to join means that your derivative spouse or child will immigrate to the U.S. more than six months after you.

No, USCIS does not offer Premium Processing for adjustment of status applications.

Your priority date must be current as of the date that USCIS approves your I-485 Adjustment Application. If the date retrogresses (moves back) after your I-485 application was filed, then USCIS will keep that application pending while it waits for the priority date to become current again. You can renew your work permit and advance parole travel document during this time, if you wish. Once the priority date is current again, USCIS will resume processing the green card application.

When a noncitizen applies for adjustment of status based on a family petition, the U.S. citizen or green card holder who filed the petition must promise to provide the new immigrant with any support necessary to maintain him or her at an income level that is at least 125 percent of the federal poverty guidelines for the household size. The petitioner must also show that he or she has an income of at least 125 percent of the federal poverty guidelines for his or her household size. In some situations, income of the green card applicant may be used when calculating that income. If the U.S. citizen or green card holder petitioner does not have enough income, he or she may use assets to make up the difference or may find a joint sponsor who is willing to make the same promises as the petitioner. See the Poverty Guidelines to determine what your support requirements might be.

Whether you should apply for Advance Parole will depend on your specific circumstances and travel plans. For most adjustment applicants, Advance Parole is required prior to any international travel. If you depart the U.S. without an approved Advance Parole travel document, USCIS will determine that you abandoned your I-485 Adjustment of Status application and will deny it. You will not be permitted to return to the U.S. However, there is an important exception to this rule for H and L nonimmigrant visa holders. If you hold valid H or L status, you may continue to travel with your H or L visa while your I-485 application is pending, without abandoning your I-485 application. USCIS has increased the filing fee for Advance Parole travel documents to $630 for paper filings or $580 for online filings. If you do not plan to travel, or if you have a valid H or L visa, it may not make sense to pay the filing fees for a travel document. However, if you do not hold H or L status and plan to travel internationally while your adjustment application is pending, you must first apply for and receive an Advance Parole travel document.

An EAD is an Employment Authorization Document, which allows the bearer to obtain a social security number (if they don’t already have one), and to work legally in the United States. Applicants for adjustment of status may also apply for an EAD for an additional government filing fee. USCIS generally approves the EAD application within four to six months, meaning that the noncitizen may start working even before the green card is approved. However, if you already have work authorization through your nonimmigrant status, or if you do not need to work or obtain an EAD, you may decide against requesting an EAD.

Biometrics are unique physical characteristics that can be used to confirm an individual’s identity. USCIS collects biometrics for many types of applications, including adjustment of status applications, to confirm the identity of the applicant. If USCIS requires biometrics from you, they will schedule you for an appointment at one of its Application Support Centers. When you attend your appointment, USCIS will collect biometrics from you, which may include your fingerprints, photograph, and/or signature. If you previously provided biometrics, USCIS may instead tell you that they will reuse your previously captured biometrics and not require you to attend a new biometrics appointment.

Visit this website to search for doctors who are authorized to preform immigration medical examinations. These doctors are also called Designated Civil Surgeons. Note that health insurance policies do not cover immigration medical examinations, and there is not a set fee for those examinations. You may wish to call several different doctors to compare prices.

Consular Processing Questions

Consular processing is the process of applying for an immigrant visa and green card status at a U.S. consulate abroad. This process is used for individuals who are not already living in the U.S., and for those who are in the U.S. but who prefer to be processed for their green card abroad.

The National Visa Center (NVC) is part of the U.S. Department of State. It is responsible for collecting all information necessary for green card processing to take place at one of the U.S. consul posts abroad, and then forwarding that paperwork to the appropriate U.S. consulate in advance of the interview. If you indicated on your I-130 or I-140 petition that you would apply for your immigrant visa abroad, USCIS will send your file to the NVC once it approves the I-130/I-485 petition. The NVC will then contact you to request you submit the immigrant visa application, fees, and supporting documentation. Click here for further information on the National Visa Center.

You will need your birth certificate, valid passport, any marriage or divorce certificates, police clearance certificates for any countries you have lived in after turning 16, and criminal, court, or military records, if applicable. If you are applying for an immigrant visa based on a family-based petition, you will also need proof of the petitioner’s U.S. status, income, and recent federal income tax filings.

USCIS’s Form I-824 is an “Application for Action on an Approved Application or Petition.” In the consular processing context, this form is used when the applicant wishes to change the location for their green card processing from here in the United State (under the Adjustment of Status process) and instead wishes to be processed for their immigration visa by the U.S. consul in their home country. It is also used when a derivative spouse or child wishes to apply for an immigrant visa abroad after the principal applicant adjusted status inside the United States. After USCIS approves your I-824 Application, your file will be forwarded to the National Visa Center to begin the appropriate consular processing case.

Police clearance certificates are required for every country where you have lived for six months or more after turning 16. The only exceptions are that no police clearance certificates are required for time spent in the United States, and no police certificates are required from countries for which such certificates are unavailable, as determined by the Department of State’s U.S. Visa Reciprocity and Civil Documents by Country database. Immigrant visa applications must consult that database to see the requirements for police clearance certificates for every country where they have lived for six months or more after turning 16.

The consulate may recommend DNA testing when other evidence of a biological relationship is insufficient. The consulate may not require DNA testing, but it may refuse to issue an Immigrant Visa if it finds insufficient evidence to prove the family relationship the visa requires.

Many applicants will not have a choice between adjusting status or consular processing in their home country, as immigration history and current country of residence may require one avenue or the other. However, for applicants who are able to pursue either option, adjustment of status is generally preferred. This is because adjustment applicants are able to remain and work in the U.S. while their applications are pending and because they are entitled to all the privileges and protections of the U.S. Constitution, while such rights and protections do not exist while on foreign soil.

EAD Questions

An EAD is an Employment Authorization Document, which allows the bearer to obtain a social security number (if they don’t already have one), and to work legally in the United States. However, some noncitizens may work automatically as a part of their status, for example lawful permanent residents (green card holders), asylees, individuals with employment-based visas (E, H-1B, J, L, TN) and L-2S visa holders. Others will first need an EAD before they accept employment. The immigration law defines the different types of noncitizens who may qualify for an EAD. Some of the most frequently used categories for an EAD are for applicants with pending I-485 adjustment of status applications, and for spouses of H-1B nonimmigrants with approved I-140 petitions. To apply for an EAD, you must submit an application, supporting documents, and passport-style photographs to USCIS.

To work lawfully in the United States, a noncitizen must possess the legal authority to work. Such authority can be automatic and incidental to their status and not require an EAD. Examples of those authorized to work without a separate EAD are: Lawful Permanent Residents, Conditional Residents, Aslyees/Refugees, H-1B visa holders, E-1/E-2/E-3, J-1 TN, L-1 and L-2S visa holders, etc. Other categories of status may only engage in employment after first obtaining an Employment Authorization Document (EAD). Examples of these include F-1, H-4, applicants for Adjustment of Status, TPS, etc. You cannot legally work in the U.S. without some type of employment authorization, whether automatic as part of your status or as a result of an EAD. Accepting employment without proper authorization may affect your ability to receive future U.S. immigration benefits.

The validity period of your EAD will depend on your EAD eligibility category and possibly on the time remaining on your nonimmigrant status. For example, if you apply for an EAD because you have a pending I-485 adjustment application, the EAD should be valid for a five-year period. If you apply for an EAD based on having H-4 status and being married to an H-1B nonimmigrant with an approved I-140, then your EAD will only be valid to the expiration date of your lawful stay in H-4 status. Other types of EAD categories will have other validity periods. If you have questions about an EAD application, please contact our office for a consultation.

Noncitizens who are authorized to work in the U.S. are authorized to obtain a social security card. If you have an EAD, you are authorized to work and can obtain a social security card. However, if you are authorized to work based on a nonimmigrant visa status, then you can also obtain a social security card with proof of that status, rather than with an EAD. If you are not authorized to work in the U.S., you will not be able to obtain a social security card.

Some states require applicants for a driver’s license to prove lawful immigration status, with an EAD as one example of a document that proves lawful immigration status. Individuals with no EAD but with certain types of nonimmigrant visas will also be able to obtain a driver’s license in states that require proof of immigration status. Other states, including Massachusetts, California, New Jersey, Connecticut, New York, and others, will permit noncitizens to obtain driver’s licenses without proving their immigration status. To see which states issue driver’s licenses to undocumented individuals, please visit States Offering Driver’s Licenses to Immigrants. Note however that federal law requires a ‘REAL ID’ to permit access to domestic flights and certain federal facilities. A driver’s license that does not require proof of immigration status will not qualify as a REAL ID for those purposes.

Citizenship Questions

Typically, you must have your green card for a minimum of five years. That retention period is reduced to three years if you are married to a U.S. Citizen. You must also demonstrate an ability to read and write in English; an attachment to our history and form of government by passing a U.S. history and government exam; and must also demonstrate that you are a person of good moral character for the entire qualifying period (five or three years).

Yes, you may file 90 days in advance of your eligibility date.

First, it is critical that you disclose any prior criminal record regardless of where it occurred, how old you were, and whether the charges were dropped, or even the record sealed. Criminal activity within the qualifying period of either five or three years can lead to a determination that you are not a person of good moral character. Charges outside the qualifying period, though they must be disclosed, don’t usually have any impact on your case unless they were significant crimes such as aggravated felonies, which make an individual permanently ineligible for citizenship.

USCIS expects you to provide certified copies of each charge against you including full details as to how the charge was resolved or disposed. Certified means it has a stamp from the keeper of the records, typically the court clerk confirming it is an original document. Submitting photocopies and not originals or un-certified documents will likely lead to either a request for evidence, or a denial of your application if you fail to provide the proper records.

Failure to register for the Draft/Selective Service if you are male under the age of 31 and were in the U.S. between the age of 17 and 26; failure to pay child support; or failure to file or pay taxes, can result in a determination you are not a good moral law-abiding person.

No, there are certain exceptions for some older individual and long-term green card holders, as well as for individuals with certain physical or cognitive disabilities, provided a medical certificate is obtained demonstrating why that individual cannot be examined or demonstrate necessary attachment to our Constitution. Medical certificates are often used for individuals with developmental disabilities, and older individuals who may have had a stroke or suffer from cognitive disabilities or decline. Such certificates must be signed by a treating physician and must include a diagnosis code.

There are 100 questions on the study guide, but only 10 are asked at the time of your interview, which are randomly selected. You must get a minimum of six correct. If not, your naturalization application cannot be approved. You can request a second opportunity to take the test at a later date, which is always advisable to avoid having to refile a new petition and pay a new filing fee.

Case Status and Update Related Questions

USCIS’s processing times vary substantially depending on what type of case you have pending. You can check the standard processing time for your type of case here.

The processing times published there reflect how long USCIS is taking to process 80% of similar cases. Your case may take more or less time to reach completion, so this is only a rough estimate.

You may check the status of your USCIS application by entering the receipt number from your I-797C receipt notice on the U.S. Citizenship and Immigration services website here.

All noncitizens in the U.S. are required to notify USCIS if their address changes, even if they have no pending application or petition pending. However, if you have a pending application or petition, it is important that you also include the receipt number of that pending case when you update your address. Otherwise, USCIS will not update the mailing address for your application, and you may miss important notices that could even result in the denial of your application. If you have an online USCIS account, you can log-in there to update your address. If you do not have an online account, you can still update your address online here. You also have the option to mail in a paper change of address form.