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ResourcesVisa & Immigration LawUS Immigration LawAdjustment of Status (I-485) and Lift of Conditions Explained

Adjustment of Status (I-485) and Lift of Conditions Explained

Transcript of the above video:

In this video we are going to discuss adjustment of status, a so called I-485 process and lift of conditionality.

Adjustment of status, in the family visa context with respect to say a K-1 fiancée visa occurs after the foreign fiancée has come to the United States and has married their American citizen fiancée and then they need to go ahead and get long term status, lawful permanent residence, aka green card. One must undergo the adjustment process. Unlike the Immigrant Visa categories, the IR-1 and the CR-1, the K-1 visa basically only allows the bearer to come into the United States for 90 days and then upon entering the United States, if that person does not marry their US citizen fiancée and files for adjustment of status, that alien must depart the United States or be considered in overstay of their visa status in the USA.

Some things to keep in mind with respect to the adjustment of status process: the K-1 fiancée visa is a little bit different than the immigrant visas in that the Affidavit of Support that’s filed on behalf of the fiancée is actually an I-134 form as opposed to the I-864 which is used in immigrant visa cases. Once that fiancée arrives in the United States and becomes the spouse of an American citizen an I-485 packet must be filed and included in that packet is generally an I-864 which is the affidavit of support. The I-864 in general and the I-134 is discussed in another video on this channel but it should be brought up under these circumstances that the I-864 is filed at the time of the adjustment of status. Some things that people get confused about with respect to adjustment is the misunderstanding with respect to the CR-1 visa, the K-1 visa and the IR-1 visa and the various status that are granted under each one of those visas and what adjustment actually is.

Adjustment of status is having one’s visa status adjusted from that of non-immigrant ie. K-1, even though the K-1 visa is what’s called a dual intent visa, where the bearer can have non-immigrant intent as well as immigrant intent upon their arrival in the United States.  But the adjustment of status, when you’re adjusted or when one is adjusted, they are literally, their status is moved from being non-immigrant to immigrant status.

This is very different than what is called the ”lift of conditions” which occurs in the CR-1 category. The CR-1 basically stands for Conditional Resident, so a person who’s admitted in the United States in CR-1 status, is admitted as a conditional lawful permanent resident in the United States. The bureaucratese on that phrase is sort of astounding because how can one be a conditional permanent resident? Well the conditionality was created as a result of what was felt to be a plethora of so called “sham” marriages, or so called marriages of  convenience, where Americans, there were instances of Americans marrying foreign nationals simply in order to get immigration benefits. The CR-1 visa category or the conditionality of the initial immigrant visa issued to the spouse of a United States citizen who has only been married to that United States citizen for 2 years, was created in an effort to cut back what was considered to be a problem with these so called marriages of convenience.  The result of this is, basically if there’s a US citizen bi-national couple, an American citizen say married to a Thai citizen, if that couple has not been married for 2 years at the time of the foreign spouse’s entry or admission into the United States, in lawful permanent resident status, then that foreign spouse is considered to be a conditional resident. What this means is that the initial green card issued will be a 2 year green card as opposed to a 10 year green card and 90 days prior to the 2 year anniversary of that individual’s entry into the United States, they will need to go ahead and file for lift of conditionality which is a fairly straight forward procedure but basically USCIS wants to see the couple is still married, and it’s a genuine relationship and once that is ascertained, and hopefully in the positive, then a 10 year green card will be issued to the spouse of the United States citizen.

So to sum up, there is a difference between adjustment and initially the person who adjusts will be issued conditional permanent residence, and at the 2 year anniversary of that individual’s adjustment, they will be able to go ahead and lift their conditionality and be granted a 10 year green card.

So sort of again to sum up, the K-1 process requires that the person get the visa, then adjust, then later down the road lift the conditionality of their lawful permanent residence so that they are then an unconditional lawful permanent resident in the United States. A  CR-1 visa holder goes into the United States with lawful permanent residence but the lawful permanent residence is conditioned upon the marriage staying intact for 2 years and basically a filing of lift of conditionality. The IR-1 category is for those couples in the marriage visa context. The IR-1 category is for those couples who have been married for 2 years or more at the time of the foreign spouse’s entry into the United States and the IR-1 grants unconditional permanent residence to the foreign spouse on lawful admission into the US with the correct visa.

So an IR-1 is basically unconditional permanent residence, CR-1 is conditional permanent residence, K-1 is a fiancée visa which is a dual intent non-immigrant visa that is adjustable in the United States and upon adjustment that person will be a conditional permanent resident for 2 years until they file their lift of conditions and then they become an unconditional permanent resident. With respect to naturalization, we’ll discuss that in another video but for now, those are basically the things to keep in mind with respect to adjustment of status and lift of conditions.

It should be noted with respect to adjustment of status in K-1 status over to green card status, while the adjustment is pending, the foreign fiancée, now spouse, cannot leave the United States without falling out of status so if the adjustment has not been completed and that individual departs the United States, the entire visa process is effectively dead and that person will have to go back through the entire process again to regain lawful status in the United States. There are exceptions to this, the filing of what’s called an I-131, advance parole application, if approved, will keep one’s status during the adjustment process, will keep one’s status “alive” while that individual leaves the United States. In many cases though advance parole is not heavily used, it’s actually fairly rare to see because one has to show a compelling reason for being granted advance parole in order to leave the United States while adjustment is pending.