Even with a “marriage made in heaven”, a problem can arise when a foreign national beneficiary attempts to adjust status to become a lawful permanent resident.

Adjustment of status is the process used by a foreign national who is physically present in the United States to obtain a green card. The alternative is to apply for an immigrant visa through a US consulate abroad. Depending upon the particular case load of USCIS service centers in the US, adjustment of status may be preferred by foreign national over consular filing because 1) leaving the US may not be an option if the beneficiary has unlawful presence in the US, 2) it avoids the expense, time of separation and inconvenience of returning tot he home country, 3) adjustment applicants and family members ae entitled to employment authorization and permission to travel while the application is pending (assuming there is no unlawful presence which would trigger a bar), and there are more options for reconsideration of an unfavorable decision by USCIS.

In order to qualify for adjustment of status in the US, the applicant must:

A. have been admitted or paroled, or qualify for a special program which negates this requirement. Otherwise, it will be necessary for the applicant to return home to wait for permission to reenter the US.

B. have an immediately available visa number at the time of filing. Certain relatives are classified as an “immediate relative”, and a visa number is available automatically. For example, when a US citizen spouse files for a foreign national beneficiary spouse.  In other cases, depending on the familial relationship, the beneficiary will be categorized in a preference listing, with the practical result being a visa number will not be available for years.

C. be eligible to adjust. In other words, not barred for some reason from adjusting, and having submitted the proper application with supporting documentation, including an Affidavit of Support.

This is where the problem comes in. One of the bars to adjustment of status is having engaged in unauthorized employment on or after January 1, 1977. Unauthorized employment is a bar to adjustment of status to persons who engage in unauthorized employment even after their adjustment application is filed. There is an exception if the applicant has not worked more than 180 days without permission since his or her last entry into the US.

“But wait a minute”, you say. “I thought marriage to a US citizen or permanent resident meant I could get approved.” This is a common misconception. Marriage to a US citizen does not solve all of an applicant’s potential problems to adjustment, but does qualify a person for adjustment (assuming all other conditions are met), even though the foreign national has worked without authorization. That is not true, however, for foreign nationals who marry permanent residents. Working without authorization is a bar to adjustment of status.

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