In the United States, getting legal immigration status can be very challenging, especially for those facing deportation. However, if you have a relative who is a lawful permanent resident or a U.S. citizen, you may have a chance to obtain a green card. This Adjustment of Status guide will explore the process of changing your status and working toward the American dream.
Understanding Adjustment of Status
Adjustment of status means an application of an alien who is already present in the United States for a Green card status. It is a possibility to touch on an important aspect of the life of undocumented immigrants that, however, has its serious conditions.
Grounds for Adjustment of Status
- Eligibility Criteria: To adjust status, individuals typically must be eligible under specific provisions, such as having a qualifying family relationship or employment offer. For example, Section 13 of the 1957 Immigration Act allows certain noncitizens, including diplomats, to adjust their status if they demonstrate compelling reasons preventing their return to their home country.
- Compelling Reasons: Applicants must establish “compelling reasons” that justify their inability to return to Nigeria. General fears about violence or instability are often insufficient; rather, applicants need to show significant changes in political conditions or personal circumstances that directly impact their safety.
Options for Relief from Deportation
- Cancellation of Removal: This is available for individuals who have been in the U.S. for a certain period and can demonstrate that their removal would cause exceptional and extremely unusual hardship to a qualifying relative who is a U.S. citizen or lawful permanent resident.
- Waivers of Inadmissibility: If deported, an individual may face a waiting period before reapplying for admission (typically five, ten, or twenty years). They may also need to file Form I-601 to request a waiver of inadmissibility based on specific grounds that led to their removal4.
- Temporary Protected Status (TPS): This designation can provide temporary relief from deportation for nationals of countries experiencing ongoing conflict or natural disasters. While currently not designated for Nigeria, advocacy efforts are ongoing to secure TPS for Nigerians due to escalating violence and instability in the region.
- Deferred Enforced Departure (DED): This is another form of relief that can be granted by the President and allows individuals from designated countries to remain in the U.S. temporarily without fear of deportation.
- Prosecutorial Discretion: Immigration authorities may exercise discretion in enforcing deportation orders, allowing eligible individuals to remain in the U.S. while their immigration status is resolved.
Legal Considerations
- Deportation Proceedings: Individuals facing deportation must understand their rights during proceedings and may seek legal representation to navigate complex immigration laws effectively.
- Impact of Prior Violations: Past immigration violations can complicate adjustment applications, as individuals may be deemed inadmissible based on previous actions, including fraud or misrepresentation during prior immigration processes.
Eligible for adjustment of status
To be eligible for adjustment of status, you must meet the following requirements:
Lawful Entry
You should enter this country legally and meet the requirements relating to your admission to the United States. You gained admission under the Immigration Act, indicating that you underwent inspection and received permission to enter at a border/post of any state within the United States. However, there are certain reliefs in case one is applying for an immigration number under Section 245 (i) of INA.
Admissibility
To enter the country, you must meet the necessary qualifications and not be prohibited from doing so, as failure to provide relevant evidence and establish defenses can lead to inadmissibility, which may require legal assistance from an immigration attorney to navigate.
Qualifying Relative
The U.S. immigration authorities require applicants to have an eligible beneficiary, typically a spouse, child, or immediate family member who is either a U.S. citizen or Legal Permanent Resident, and for whom they are seeking a green card.
Visa Petition Approval
A visa petition for you must be completed and granted by U. S. Citizenship and Immigration Services (USCIS). Your U.S. relative typically files this petition to help acknowledge your existence. It is as significant as some of the other hallmarks in the process.
Available Visa Number
There must be an immediately available visa number or priority date. The availability of visas can vary based on family preference categories and country of origin. It’s essential to stay updated on visa bulletin updates.
No Immigration Violations
You should not have any serious immigration violations on your record. If you are married to a U.S. citizen and your only violation was unauthorized employment, exceptions may apply.
These requirements are subject to special rules and exceptions, making it crucial to consult an immigration attorney for personalized guidance.
The Special Case: Section 245(i)
For undocumented immigrants who did not enter the U.S. lawfully or violated their immigration status, there’s a rare but beneficial option known as Section 245(i). This provision allows adjustment of status under certain circumstances:
- You must be the beneficiary of a visa petition or labor certification filed on or before April 30, 2001.
- Alternatively, you must have a visa petition or labor certification filed between January 14, 1998, and April 30, 2001, and prove your physical presence in the U.S. on December 21, 2000.
When filed, these petitions or labor certifications must have received or been eligible for approval without involving any fraudulent activity. While Section 245(i) is uncommon, it can be a lifeline for those who qualify.
Navigating Adjustment of Status in Immigration Court Removal Proceedings
In standard cases, USCIS handles the adjustment of status applications. However, when you are in removal proceedings before an immigration judge, the process differs:
- USCIS processes and decides on Form I-130, Petition for Alien Relative, filed by your U.S. citizen or LPR petitioner. Approval of this petition is essential to move forward.
- Once the I-130 is approved, the immigration judge takes charge of Form I-485, Application to Adjust Status or Register Permanent Residence. In court proceedings, special rules may apply.
For example, if you’re adjusting your status based on marriage and the marriage occurred while you were in removal proceedings, you must provide “clear and convincing” evidence of the marriage’s authenticity. This higher burden of proof means your evidence must outweigh any doubts the judge may have.
You’ll need to submit documents supporting the legitimacy of your marriage, testify at the proceedings, and undergo questioning by the government attorney and the judge.
Seeking Legal Assistance
Given the complexity of the deportation process and the intricacies of adjusting your status, it’s highly advisable to seek legal counsel. An experienced immigration attorney can navigate the nuances of your case, increasing your chances of a successful adjustment of status.
For more information and tailored guidance, consult with an immigration attorney who specializes in deportation and removal proceedings. Your American dream may still be within reach.
In conclusion, despite the challenges of removal proceedings, adjustment of status based on family is a viable option for some undocumented immigrants. By meeting specific criteria and seeking legal assistance, you can pursue your path to lawful permanent residency in the United States.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your adjustment of status straightforward and successful. Whether you’re applying for a family-based green card or a work-related adjustment, we handle every step—from preparing your application to gathering the required documents.
Our immigration lawyer consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process, coordinating with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients with Adjustment of Status. Call us today at +234 812 5505 986 to learn how we can assist you.
