You probably weren’t thinking about the United States Immigration and Nationality Act when you met your spouse. You probably didn’t review your I-94 departure date before you fell in love. You certainly didn’t intend to break the law.
But our immigration laws are tough on aliens who have overstayed their welcome, even when they have done so for the best of reasons. Marriage to a US citizen gives most aliens a way to get a green card – Permanent Resident status in the United States – through a complex process called “adjustment of status”. But the marriage itself doesn’t change the fact that an alien who overstays is removable – deportable – and possibly subject to a long ban on returning to the US. The only way to change that is to apply for adjustment of status – and you only get one chance to do it right.
The United States Citizenship and Immigration Service (USCIS) doesn’t keep very close track of people who enter the US. They might want you to think that they have a computer that notifies agents when an alien’s authorized stay has ended, verifies that the alien has not returned home, and automatically dispatches agents to the alien’s last known address to detain and remove them. They don’t – at least not yet. People stay in the United States for years after their authorization ends. The USCIS term for these people is “overstay.”
But overstays are detained and removed every day. Some come to the attention of USCIS when they commit crimes, others when they are found to be working without authorization. Many are stopped for traffic violations. When the local police officers see that the person has no driver’s license – and an accent – they call USCIS, and the alien often ends up in detention. Overstays often live in fear.
Some overstays get themselves into trouble by applying to USCIS for benefits they can’t get, or by making mistakes and being denied benefits they are eligible for. In my experience, this happens most often when people apply for adjustment of status – because the process is so confusing.
By applying for adjustment of status through marriage, you are raising your hand and telling the USCIS that you are, or are soon to become, an “overstay” – someone who has stayed in the US longer than allowed. Overstays are removable – deportable – from the US, and, depending on how long they overstayed, may be subject to a ban of up to 10 years on returning to the US. Even if they did nothing else wrong. Even if they have a spouse and children in the US.
If USCIS denies your adjustment application and chooses to remove you, it will refer your case to Immigration and Customs Enforcement (ICE). ICE can arrest and detain you while you await removal proceedings. A removal proceeding is the process by which USCIS asks an Immigration Judge to order an alien removed from the US. In recent years, the USCIS has adopted the practice of immediately referring denied adjustment cases to ICE.
If the case goes to an Immigration Judge, the couple will have a second chance to prove that their case should be approved, but completing this process in removal proceedings is extremely slow, complex and expensive.
Needless to say, the marriage adjustment process must be taken very seriously. The stakes are very high and even minor mistakes can have devastating consequences. The following is not legal advice, and it is not a substitute for the services of a competent immigration lawyer, but may help you avoid some of the more common mistakes:
Mistake #1 – Misunderstanding the alien’s current immigration status. Adjustment only works if the alien can prove that he or she entered the US with permission (what USCIS calls “with inspection”) meaning that the alien talked to immigration officers at the border or airport and was allowed into the country. If the alien entered without permission, adjustment is not possible. Aliens who entered without permission must return to their home country and seek a waiver of inadmissibility – a much more difficult and uncertain process.
Mistake # 2 – Believing that a marriage certificate is enough. It’s not. Marriage to a US citizen doesn’t give an alien any immigration status – it only provides a basis to apply. You have to prove a lot more to get your green card. You have to prove that the marriage is real and not just for immigration reasons. You have to prove that any prior marriages have ended. You have to prove that there is enough financial support available for the alien. You have to prove that you are not “inadmissible” because of past actions. If it sounds complicated – it is.
Mistake # 3 – Not telling the whole truth. The biggest mistake you can make is to lie or fail to disclose something on the documents you submit or in your adjustment interview. If your case is approved, the USCIS will forgive the fact that you overstayed your visa, the fact that you worked without permission, and even some minor criminal issues. But if you lie or fail to disclose something, the USCIS will deny your application. For the alien, that may mean removal from the US. Even the US citizen spouse is in jeopardy because lying to the USCIS is a crime.
Mistake # 4 – Moving. If you do not have a lawyer, the USCIS will send all notices to the address you give when you file. If you move during the application process, you have to notify USCIS. But in my experience, the USCIS has a terrible track record with address changes – they often continue to send notices and information requests to your old address – even if you file the required papers to change your address. If they send an interview notice or information request and you don’t respond – they deny your case.
Mistake # 5 – Leaving the US. The 10 year ban kicks in when the alien leaves the US. Filing your adjustment papers does not change your immigration status or give you the right to re-enter the US. Many aliens are understandably eager to visit their home country after years away from home. Even though the USCIS has a way for aliens to get reentry permission while the adjustment case is pending, I strongly recommend that applicants stay in the US until they have their green card.
Mistake # 6 – Trusting that the USCIS will help you. They won’t. The focus of many governmental agencies is to help people, but the USCIS is different. The USCIS will grant your adjustment of status application if you qualify and do everything right, but it is not there to help you along. It is nearly impossible to even ask them a question.
My office has helped countless couples successfully navigate the adjustment process. While past success does not guarantee future results, I am proud to say that I have never had an adjustment application denied for couples who followed my instructions and attended their adjustment interview.