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Adjustment of Status
Introduction
After you and your fiancee marry, it will be necessary to adjust her immigration status to permanent residency (green card). Adjustment of Status (AOS) is the procedure through which your fiancee changes status from a K-1 visa holder to a permanent resident of the United States. This procedure enables your fiancee to change her status to permanent resident without leaving the United States.
The Law
Aliens who are admitted on a temporary basis under the K-1 category for fiances may only be adjusted to permanent residence on a conditional basis, and only where the adjustment is a result of the K-1 visa holder's marriage to, and immigrant visa petition by, the United States citizen who filed the petition to classify him or her as a K-1.
Procedure
An application for adjustment of status is filed with the USCIS district director in the district of the applicant's residence. Adjustment of status is pocessed by the local USCIS District Office as differentiated from the USCIS Service Center which processes K-1 Visa petitions.
A K-1 Visa holder filing for adjustment of status must file the following forms: (1) I-485; (2) I-864; and (3) Updated G-325. Form I-765 for employment authorization need only be filed if the applicant intends to work during the pendancy of the adjustment process.
Advance Parole Required to Leave While Adjustment is Pending
According to 8 CFR §245.2(a)(4)(ii), an application for adjustment is considered abandoned if the alien leaves the United States while the application is pending. However, the alien may apply for advance parole prior to departing the United States to ensure that his or her application is not deemed abandoned. Advance parole is available for any legitimate personal or business reason.
Notwithstanding the above, on June 1, 1999, the INS published an interim rule that allows H-1 and L-1 nonimmigrants (and their dependents) to travel outside the United States without abandoning their applications for adjustment of status, making advance parole unnecessary for these aliens. The interim rule was published in 64 FR 29209.
Ability to Work While Adjustment is Pending
An alien who has filed an application for adjustment of status may apply for an employment authorization (form I-765) in increments not exceeding one year during the period the application is pending (including any period when an administrative appeal or judicial review is pending.) This is an unrestricted employment authorization that permits the alien to work for any employer.
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