You are someone who follows the rules. You have no criminal record and pay your taxes on time. You also happen to be married to someone from another country, and you want him/her to be able to move to the United States. And you are willing to follow the rules to do it right! If your spouse enters the U.S. legally, it is reasonable to think that she will be able to pursue residency. But unfortunately the reality is far more complex than that.
Let’s use an analogy.
Imagine that you are a college advisor. A pre-med student comes up to you and asks, “I passed biochem 101, will I be able to graduate?” As a college advisor, you understand that the premise of that question is misguided. There are many, many requirements for earning a pre-med degree, and biochem 101 is just one of them. So can the student earn her degree? To answer that we would have to know if she will meet the other requirements for the degree. Will she pass biochem 301? How about statistics?
Immigration lawyers are in a similar situation.
Everyone wants a simple answer to their “simple” immigration question. But unfortunately immigration law is not simple. Yes – one of the requirements for adjustment of status is that someone have entered the United States lawfully (or “with inspection”). (Except for when this requirement doesn’t apply at all, such as INA 245(i) cases). But it is only one of the requirements.
The rules for adjustment of status are laid out in section 245(A) of the Immigration and Nationality Act. So there’s one set of requirements. But the applicant also has to pass all of the “grounds of inadmissibility.” Those are set forth in a completely different part of immigration law – INA Section 212. On top of that there’s the matter of procedural requirements and presenting the correct legal forms and supporting documents.
There just some examples of the requirements that could trip up an application:
- Immigrant intent. A person is usually barred from adjustment if she entered the U.S. on a temporary visa with the goal of seeking residency. This can result in a lifetime bar to reentering the U.S. under the fraud provisions of immigration law.
- Applying too soon. Filing an application within 90 days of entering the U.S. can potentially trigger fraud concerns, resulting in the application being denied and a lifetime ban.
- Mental health issues. Did you know that certain forms of mental illness can prevent approval?
- Financial sponsorship. The U.S. petitioner must be able to financially support the foreign spouse, or else will need an additional financial sponsor.
- Healthcare issues. If the applicant has health issues, that can trigger concerns about “public charge inadmissibility” – basically, whether the person will be able to pay for health care.
That is just a short list of examples. There are scores of different “grounds of inadmissibility” that can prevent adjustment of status.
Our message here is not that this is all too complex to understand. It’s not. But you do need to take the time to educate yourself. Do not reduce the adjustment process to one simple question: “my spouse entered the U.S. legally, so can she adjust?” Understand that there are many more questions that you will need to take the time to understand and address before you make the decision to move forward.