In order to qualify for Adjustment of Status the following requirements must be present in the United States. 

In most cases with some exceptions the applicant must have been:

• Inspected and admitted into the United States; or
• Inspected and paroled into the United States.
• The applicant must properly file an adjustment of status application.
• The applicant must be eligible to receive an immigrant visa.
• An immigrant visa must be immediately available when the applicant files the adjustment of status application and at the time of final adjudication.
• The applicant must be admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief.
• The applicant merits the favorable exercise of discretion.

Special immigrant juveniles (SIJ) and other special immigrants are not exempt from this requirement. However, statutory provisions expressly state that these special immigrants are considered paroled for adjustment eligibility purposes. Accordingly, the beneficiaries of approved SIJ petitions meet the inspected and admitted or inspected and paroled requirement, regardless of their manner of arrival in the United States.  Certain special immigrants also meet this requirement such as victims of domestic violence under VAWA or U-Visa recipients applying for Adjustment of Status. 

The Adjustment of Status is a complex process because it is a series of applications filed all together to obtain immigration benefits.  If the Adjustment of Status is through a USC spouse, it is further complicated by having to prove that the marriage was entered into in good faith and not to obtain an immigration benefit.  People lack the ability to understand the importance of the requirements and often times apply pro-se or with the help of a non-lawyer get into a lot of trouble for entering into a process without knowing what is required of them during the process.  Some people underestimate the importance of using the help of a professional who specializes in immigration law to help them with their immigration matters until they are in trouble. 

A waiver of inadmissibility is necessary when you have issues that make you ineligible to receive a visa.  The visa could be to immigrate to the United States or for temporary reasons.  The most common waivers are, waiver of inadmissibility for unlawful presence, waiver for misrepresentation to a government official, waiver for fraud, waiver for having committed a crime involving moral turpitude and waiver for deportation/removal. It is very important to know and understand if you need a waiver and if you qualify to obtain the waiver.  For must waiver you have to have a qualifying relative exept for the waiver of deportation.  For the waiver of inadmissibility or waiver of misrepresentation you need to have a parent or spouse who is an LPR or a USC to qualify you for the waiver.  For the 212H waiver, you have to have a parent, child or spouse who is a LPR or USCI to qualify you for the waiver. A waiver is a complicated and complex legal process.  We have helped hundreds of people who needed a waiver of inadmissibility obtain legal status through a waiver. We take a lot of pride in the kind of work we do and consider that the success of our practice in the area is due to working on these cases with a team approach from the firm and the clients seeking out service. For this team approach, it takes educating the clients on what is required of them to present a winning case. 

If you are in the United States and need the protection of a juvenile court because you have been abused, abandoned or neglected by a parent, you may be eligible for Special Immigrant Juvenile (SIJ) classification. If SIJ classification is granted, you may qualify for lawful permanent residency (also known as getting a Green Card).

You must meet all of the statutory requirements outlined below to be eligible for SIJ classification. The requirements can also be found at INA § 101(a)(27)(J); 8 CFR § 204.11;

You Must:

Be under 21 years of age.

Only at the time you file the SIJ petition (Form I-360).

Be currently living in the United States. You cannot apply from outside the country to come to the United States on SIJ classification. Both at the time you file the SIJ petition and at the time USCIS makes a decision on your petition.

Be unmarried. This means you either:

• Have never been married; or
• Were previously married, but the marriage ended in annulment, divorce, or death.

Both at the time you file the SIJ petition and at the time USCIS makes a decision on your petition.

Have a valid juvenile court order issued by a state court in the United States which finds that:

• You are dependent on the court, or in the custody of a state agency or department or an individual or entity appointed by the court;
• You cannot be reunified with one or both of your parents because of ANY of the following:
• Abuse,
• Abandonment,
• Neglect or
• A similar basis under state law;

AND

• It is not in your best interests to return to the country of nationality or last habitual residence of you or your parents.

Note: Some juvenile courts may only be able to issue a juvenile court order if you are under 18 years of age.

Both at the time you file the SIJ petition and at the time USCIS makes a decision on your petition.

EXCEPTIONS: You do not need to currently be under the jurisdiction of the juvenile court that issued your order if the court’s jurisdiction ended solely because:

• You were adopted or placed in a permanent guardianship; or
• You aged out of the juvenile court’s jurisdiction.

Be eligible for USCIS consent. This means that you must have sought the juvenile court order to obtain relief from abuse, neglect, abandonment or a similar basis under state law and not primarily to obtain an immigration benefit. At the time USCIS makes a decision on your petition.

Have written consent from the Department of Health and Human Services (HHS)/ Office of Refugee Resettlement (ORR) to the court’s jurisdiction if:

• You are currently in the custody of HHS, AND
• The juvenile court order also changes your custody status or placement. 

At the time USCIS makes a decision on your petition.

To apply for SIJ classification, you must have a valid court order issued by a juvenile court or probate and family court.

Valid State Court Orders

For establishing eligibility for SIJ classification, a juvenile court is a court in the United States that has jurisdiction under state law to make judicial determinations about the dependency and/or custody and care of juveniles. The title and the type of court that may meet the definition of a juvenile court will vary from state to state.

State juvenile courts issue orders and make decisions based on state law about dependency or custody; whether a juvenile has been abused, neglected, abandoned, or subject to similar maltreatment and consequently cannot be reunified with his or her parent(s); and the best interests of the juvenile. USCIS does not require that a juvenile court have the legal authority to place a child in the custody of an unfit parent in order to make a qualifying reunification determination for SIJ classification.

The court order and/or supplemental evidence submitted, however, must establish that the court had competent jurisdiction to make judicial determinations about the SIJ petitioner’s dependency and/or custody and care as a juvenile under the relevant state laws.

Although state courts have the authority to provide certain protections for children under state law, they do not have the authority to administer or enforce provisions of the Immigration and Nationality Act (INA). Only USCIS can grant or deny SIJ classification or lawful permanent residence (a Green Card).

Required Determinations in the State Court Order

The juvenile or probate and family court order must contain the required determinations made under relevant state law regarding dependency or custody, parental reunification and best interests. You must submit evidence of a reasonable factual basis for each of the judicial determinations and the relief from parental maltreatment ordered by the juvenile court.

After obtaining the court order making the special finding that you are a Special Immigrant Juvenile, you are able to file a petition for immigrant visa and after that petition is approved, you are able to apply for lawful permanent residence also known as a green card 

Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for temporary stay or an immigrant visa for permanent residence. Citizens of qualified countries may be able to visit the United States without a visa under the Visa Waiver Program. All travelers coming to the United States under the Visa Waiver Program must obtain authorization through the Electronic System for Travel Authorization (ESTA) system prior to initiating travel to the United States.

If you do not qualify for the Visa Waiver Program or are traveling to study, work, participate in an exchange program, or any other purpose that does not fall under a B visa purpose of travel; you will need a nonimmigrant visa. Also, if you are a citizen of a Visa Waiver Program country and your ESTA authorization was not approved, you will need to apply for a nonimmigrant visa.

A visa does not guarantee entry to the United States. A visa simply indicates that a U.S. consular officer has determined that you are eligible to apply for entry to the United States for a specific purpose.

A nonimmigrant visa is used by tourists, businesspeople, students, or specialty workers who wish to stay for a particular period of time in the United States to accomplish specific purposes. According to U.S. visa laws and regulations, most nonimmigrant visa applicants must demonstrate to the consular officer that they have strong ties to their country of residence and must show that they intend to depart the United States after their temporary stay. However, a U.S. consular office has complete discretion on whether to approve the visa or deny it.  Once the visa is approved and you seek entry, a U.S. customs and border enforcement officer has also discretion on allowing you to entere the United States.  

What is an affidavit of support? Form I-864, Affidavit of Support under Section 213A of the INA, is a contract an individual signs agreeing to use their financial resources to support the intending immigrant named on the affidavit. The individual who signs the affidavit of support becomes the sponsor once the intending immigrant becomes a lawful permanent resident. The sponsor is usually the petitioner who filed an immigrant petition on behalf of the intending immigrant.

An affidavit of support is a legally enforceable contract, and the sponsor’s responsibility usually lasts until the family member or other individual either becomes a U.S. citizen, or is credited with 40 quarters of work (usually 10 years).

The following individuals are required by law to submit a Form I-864, Affidavit of Support completed by the petitioner to obtain an immigrant visa or adjustment of status:

• All immediate relatives of U.S. citizens (which include parents, spouses, and unmarried children under the age of 21, including orphans) and relatives who qualify for immigration to the United States under one of the family based preferences:
  • First Preference: Unmarried, adult sons and daughters of U.S. citizens (Adult means 21 years of age or older)
  • Second Preference: Spouses of permanent residents and the unmarried sons and daughters (regardless of age) of permanent residents and their unmarried children
  • Third Preference: Married sons and daughters of U.S. citizens, their spouses and their unmarried minor children
  • Fourth Preference: Brothers and sisters of adult U.S. citizens, their spouses and their unmarried minor children
• Employment based preference immigrants in cases only when a U.S. citizen or permanent resident relative filed the immigrant visa petition, or such relative has a significant ownership interest (5% or more) in the entity that filed the petition.

Note: An individual listed above does not need to submit an affidavit of support if they can show that they EITHER:

• Already worked 40 qualifying quarters as defined in Title II of the Social Security Act
• Can be credited with 40 qualifying quarters as defined in Title II of the Social Security Act
• Are the child of a U.S. citizen and if admitted for permanent residence on or after February 27, 2001, would automatically acquire citizenship under Section 320 of the Immigration and Nationality Act, as amended by the Child Citizenship Act of 2000

When you sign the affidavit of support, you accept legal responsibility for financially supporting the sponsored immigrant(s), generally until they become U.S. citizens or are credited with 40 quarters of work. Your obligation as a sponsor also ends if you or the individual sponsored dies or if the individual sponsored ceases to be a lawful permanent resident and departs the United States.

Note: Divorce does NOT end the sponsorship obligation.

If an immigrant you sponsored receives any means-tested public benefits, you are responsible for repaying the cost of those benefits to the agency that provided them. If you do not repay the debt, the agency or the immigrant can sue you in court to get the money owed. Any joint sponsors and household members who  allowed the sponsor to combine their income with the sponsor’s income to meet the minimum income requirements are also legally responsible for financially supporting the sponsored immigrant. In fact, any joint sponsor and household member is jointly or severally liable with the petitioning sponsor, meaning that the joint sponsor and household member are independently liable for the full extent of the reimbursement obligation and can be sued in court or be asked to pay the money owed, even if the petitioning sponsor is not sued or asked for money.

If you knowingly and willfully falsify or conceal a material fact or submit a false document with your Form I-864, we will deny your Form I-864 and may deny any other immigration benefit. In addition, you will face severe penalties provided by law and may be subject to criminal prosecution. The U.S. government may pursue verification of any information provided on or in support of this affidavit, including employment, income, or assets with the employer, financial or other institutions, the IRS, or the Social Security Administration.

If you include in this affidavit of support any information that you know to be false, you may be liable for criminal prosecution under the laws of the United States.

If you fail to provide notice of your change of address, as required by 8 U.S.C. 1183a(d) and 8 CFR 213a.3, you may be liable for the civil penalty established by 8 U.S.C. 1183a(d)(2). The amount of the civil penalty will depend on whether you failed to provide this notice because you were aware that the immigrants you sponsored had received Federal, state, or local means-tested public benefits. If the failure to report your change of address occurs with knowledge that the sponsored immigrant received means-tested public benefits (other than benefits described in section 401(b), 403(c)(2), or 4ll(b) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which are summarized in Part 8. Sponsor’s Contract, Statement, Contact Information, Declaration, Certification, and Signature of Form I-864) such failure may result in a fine of not less than $2,000 or more than $5,000. Otherwise, the failure to report your change of address may result in a fine not less than $250 or more than $2,000.

The following types of people do not need to file an affidavit of support:

• An individual who has earned or can be credited with 40 qualifying quarters (credits) of work in the United States
• An individual who has an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant as a self-petitioning widow or widower
• An individual who has an approved Form I-360 as a battered spouse or child
• Orphans adopted by U.S. citizens abroad if a full and formal adoption takes place before the orphan acquires permanent residence and both adoptive parents have seen the child before or during the adoption
• 
  

If your relative is either a K-1 fiancé(e), a K-3 spouse, or a K-2 or K-4 child of fiancé(e) or spouse, you do not need to submit an affidavit of support at the time you file your Form I-129F petition. Instead, you should submit an affidavit of support at the time that your fiancé(e), spouse, or child adjusts status to permanent resident after coming to the United States.

If you filed an immigrant visa petition for your relative, you must be the sponsor. You must also be at least 18 years old and a U.S. citizen or a permanent resident. You must have a domicile in the United States or a territory or possession of the United States. Usually, this requirement means you must actually live in the United States, or a territory or possession, in order to be a sponsor. If you live abroad, you may still be eligible to be a sponsor if you can show that your residence abroad is temporary, and that you still have your domicile in the United States.

Section 213A of the INA permits both a "joint sponsor" and a "substitute sponsor" in certain cases.

A joint sponsor is someone who is willing to accept legal responsibility for supporting your family member with you. A joint sponsor must meet all the same requirements as you, except the joint sponsor does not need to be related to the immigrant. The joint sponsor (or the joint sponsor and his or her household) must reach the 125% income requirement alone. You cannot combine your income with that of a joint sponsor to meet the income requirement.

If the visa petitioner has died after approval of the visa petition but U.S. Citizenship and Immigration Services (USCIS) decides to let the petition continue, a substitute sponsor must file a Form I-864 in place of the deceased visa petitioner. In order to be a “substitute sponsor,” you must be related to the intending immigrant in one of the following ways:

• Spouse
• Parent
• Mother-in-law
• Father-in-law
• Sibling
• Child (if at least 18 years of age)
• Son
• Daughter
• Son-in-law
• Daughter-in-law
• Sister-in-law
• Brother-in-law
• Grandparent
• Grandchild
• Legal guardian of the beneficiary

You must also:

• Be U.S. citizen or national or a permanent resident
• Be at least 18 years of age
• Be domiciled (live) in the United States
• Meet all of the financial requirements of a sponsor pursuant to INA 213A

The substitute sponsor assumes all of the obligations of an I-864 sponsor.

You, the sponsor, should complete Form I-864 when your relative has been scheduled for an immigrant visa interview with a consular officer overseas or when your relative is about to submit an application for adjustment to permanent resident status with USCIS or with an Immigration Court in the United States. If you have a joint sponsor, they must also complete Form I-864. If you are using the income of other household members to qualify, then each household member who is accepting legal responsibility for supporting your relative must complete a separate Form I-864A, Contract Between Sponsor and Household Member. 

You are required to provide your U.S. federal income tax return for the most recent tax year as well as proof of current employment. If you were not required to file a tax return in any of these years you must provide an explanation. Failure to provide the tax return or evidence establishing that you were not required to file will delay action on your relative's application for permanent residence. If this information is not provided, this will result in denial of an immigrant visa or adjustment of status.

When you have completed the affidavit of support, compiled the necessary documentation, and had the affidavit notarized in the United States or before a U.S. consular or immigration officer, you should provide this packet of information to your relative to submit with his or her application for permanent resident status. If you are given specific instructions to file your affidavit of support directly with the National Visa Center, you should follow those instructions.

You also must meet certain income requirements (whether you are a sponsor, a joint sponsor, or a substitute sponsor). You must show that your household income is equal to or higher than 125% of the U.S. poverty level for your household size. (Your household size includes you, your dependents, any relatives living with you, and the immigrants you are sponsoring.)

If you, the sponsor, are on active duty in the Armed Forces of the United States, and the immigrant you are sponsoring is your spouse or child, your income only needs to equal 100% of the U.S. poverty level for your household size.

If you cannot meet the minimum income requirements using your earned income, you have various options:

• You may add the cash value of your assets. This includes money in savings accounts, stocks, bonds, and property. To determine the amount of assets required to qualify, subtract your household income from the minimum income requirement (125% of the poverty level for your family size). You must prove the cash value of your assets is worth five times this difference (the amount left over).
  • Exceptions:
    • If the person being sponsored is a spouse, or son/daughter (who is 18 years or older) of a U.S. citizen: The minimum cash value of assets must be three times the difference between the sponsor’s household income and 125% of the federal poverty guide line for the household.
    • If the person being sponsored is an orphan coming to the United States for adoption: The adoptive parents’ assets need to equal or exceed the difference between the household income and 125% of the federal poverty line for the household size.
• You may count the income and assets of members of your household who are related to you by birth, marriage, or adoption. To use their income you must have listed them as dependents on your most recent federal tax return or they must have lived with you for the last 6 months. They must also complete a Form I-864A, Contract Between Sponsor and Household Member. If the relative you are sponsoring meets these criteria you may include the value of their income and assets, but the immigrant does not need to complete Form I-864A unless he or she has accompanying family members.
• You may count the assets of the relatives you are sponsoring.

Sponsored immigrants may be ineligible for certain federal, state or local means-tested public benefits, because an agency will consider the resources and assets of the sponsor (and the sponsor’s household member, if applicable) when determining the immigrant’s eligibility for the means-tested public benefits program. This process is called “income deeming.”

For more information on income deeming, please see guidance issued for the following programs:

• Medicaid and Children’s Health Insurance Program (PDF)
• Temporary Assistance for Needy Families
• Supplemental Nutrition Assistance Program
• Supplemental Security Income

If the sponsored immigrant receives federal, state or local means-tested public benefits, the agency providing the benefit may ask the sponsor (and household member, if applicable) to repay the cost of those benefits.

If the sponsor (or household member) does not repay the cost, the agency can sue the sponsor (and household member) and obtain a court order for repayment. The Presidential Memorandum instructs such benefit granting agencies to seek reimbursement to the extent allowable under law.

For more information on reimbursement actions, please see guidance issued for the following programs:

• Medicaid and Children’s Health Insurance Program (PDF)
• Temporary Assistance for Needy Families
• Supplemental Nutrition Assistance Program
• Supplemental Security Income

Ministers and non-ministers in religious vocations and occupations may immigrate to or adjust status in the U.S. for the purpose of performing religious work in a full-time compensated position.

To qualify as a special immigrant religious worker, you must:

• Have been a member of a religious denomination that has a bona fide non-profit religious organization in the United States for at least two years immediately before filing a petition for this status with USCIS;
• Seek to enter the United States to work in a full time, compensated position in one of the following occupations:
  • Solely as a minister of that religious denomination;
  • A religious vocation either in a professional or nonprofessional capacity; or
  • A religious occupation either in a professional or nonprofessional capacity;
• Be coming to work for either:
  • A bona fide non-profit religious organization in the United States; or
  • A bona fide organization that is affiliated with a religious denomination in the United States; and
• Have been working in one of the positions described above after the age of 14, either abroad or in the United States, continuously for at least two years immediately before the filing of a petition with USCIS. The prior religious work does not need to correspond precisely to the type of work you will perform. A break in the continuity of the work during the preceding two years will not affect eligibility so long as:
  • You were still employed as a religious worker;
  • The break did not exceed two years; and
  • The nature of the break was for further religious training or sabbatical. However, you must have been a member of the petitioner’s denomination throughout the two years of qualifying employment.

Full-time work is an average of 35 hours per week. Compensated may mean salaried or unsalaried.

A U.S. employer, or you on your own behalf, must file Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, to request special immigrant religious worker classification. Both you and the employing non-profit religious organization must satisfy the requirements listed below. If a petitioner believes that one of these requirements substantially burdens the organization’s exercise of religion, they may seek an exemption under the Religious Freedom Restoration Act (RFRA). A written request for the exemption should accompany the initial filing, and it must explain how the provision:

• Requires participation in an activity prohibited by a sincerely held religious belief; or
• Prevents participation in conduct motivated by a sincerely held religious belief.

The petitioner bears the burden of showing that they qualify for a RFRA exemption and must support the request with relevant documentation. We will decide exemption requests on a case-by-case basis.

Supporting Documents Required for the Religious OrganizationSupporting Documents Required for the Religious Worker

Proof of Tax-Exempt Status

If the religious organization has its own individual IRS 501(c)(3) letter, the petitioner must provide a currently valid determination letter* from the IRS showing that the organization is tax-exempt.

If the organization is recognized as tax-exempt under a group tax exemption, the petitioner must provide a currently valid IRS group tax-exemption determination letter and documentation that the organization is covered under the group tax exemption. Examples include a:

• Letter from the parent organization authorizing the petitioner to use its group tax exemption;
• Directory for that organization listing the petitioner as a member of the group;
• Membership listing on the parent organization’s website that confirms coverage under its exemption; or
• Letter from the IRS confirming the coverage.

If the IRS determination letter does not identify the organization’s tax exemption as a religious organization, then the petitioner must submit evidence establishing the organization’s religious nature and purpose. This may include, but is not limited to, the entity’s articles of incorporation or bylaws, flyers, articles, brochures, or other literature that describes the religious purpose and nature of the organization.

If the organization is affiliated with the religious denomination, the petitioner must provide:

• A currently valid determination letter from the IRS showing that the organization is tax-exempt;
• Documentation that establishes the religious nature and purpose of the organization, including, but not limited to:
  • A copy of the organizing instrument of the organization that specifies the purposes of the organization;
  • Organizational literature describing the religious purpose and nature of the activities of the organization; and
  • A religious denomination certification stating that the petitioning organization is affiliated with the religious denomination;**
• Organizational literature; and
• A religious denomination certification, included as part of their Form I-360.

Proof of Salaried or Non-Salaried Compensation

The petitioner must submit verifiable evidence showing how the organization intends to compensate the religious worker, including specific monetary or in-kind compensation. Evidence may include:

• Past evidence of compensation for similar positions;
• Budgets showing monies set aside for salaries, or leases;
• Evidence that the organization will provide room and board to the religious worker; and

W-2 or certified tax returns. If IRS documents are not available, the petitioner must explain why and provide comparable, verifiable documentation.

Proof of Membership

The petitioner must submit:

• Evidence that the religious worker is a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least two years immediately before filing Form I-360; and
• Evidence to establish that the religious worker is qualified to perform the duties of the offered position. If the religious worker will work as a minister, the petitioner must provide:
  • A copy of the religious worker’s certificate of ordination or similar documents; and
  • Documents showing the religious denomination accepted the religious worker’s qualification as a minister, as well as evidence that they completed any course of prescribed theological education at an accredited theological institution normally required or recognized by that religious denomination. Include transcripts, curriculum, and documentation that establishes that the theological institution is accredited by the denomination

If the denomination does not require a prescribed theological education, the petitioner must provide:

• The religious denomination’s requirements for ordination to minister;
• A list of duties performed by virtue of ordination;
• The denomination’s levels of ordination, if any; and
• Evidence the religious worker completed the denomination’s requirements for ordination.

Proof of Previous Religious Work (Abroad or in the United States)

If the requisite previous employment was in the United States and the religious worker received salaried compensation, the petitioner must provide documents showing they received a salary. This documentation may include, but is not limited to, Form W-2 or certified copies of filed income tax returns reflecting such work and compensation for the prior employment.

If the requisite previous employment was in the United States and the religious worker received non-salaried compensation, the petitioner must provide:

• IRS documentation of the non-salaried compensation if available; or
• An explanation of why IRS documents are not available and provide comparable, verifiable documentation.

If the religious worker received no salary but supported themselves and any dependents, the petitioner provide verifiable documents to show how the religious worker maintained support. This may include, but is not limited to, audited financial statements, financial institution records, brokerage account statements, trust documents signed by an attorney, or other verifiable evidence.

If the requisite previous experience was gained abroad, the petitioner must provide comparable evidence of the religious work.

* The IRS determination letter must be valid and cover the petitioning organization at the time the religious organization files Form I-360. A valid determination letter may include a letter that the IRS issued before the effective date of the Internal Revenue Code of 1986, or may be issued under future Internal Revenue Code revisions.

** The religious denomination certification should be signed by an organization other than the petitioning organization, and attest that the petitioning organization is part of the same religious denomination as the attesting organization.