Adjustment of Status
Adjustment of Status refers to the change of one's status to that of lawful permanent residence, commonly referred to as the "green card". Such adjustment is achieved by obtaining an approved I-485 application. Below is information on forms which must accompany an I-485.
Affidavit of Support (I-864)
Who must file:
Most family-based and certain employment-based intending immigrants who, on or after December 19, 1997, seek to enter the U.S. as immigrants or who apply for adjustment of status must have a sponsor sign an Affidavit of Support on behalf of the immigrant(s). The Affidavit is submitted on Form I-864 and or on Form I-864EZ for certain eligible sponsors (those sponsors whose qualifying income is based solely on salary or pension and is shown on W-2 form(s)).
Certain people are exempt from the I-864 requirement and should file a Form I-864W instead. These classes of people are the following:
- people having earned 40 quarters of coverage on the Social Security Act,
- a child of a U.S.C, if the child’s adjustment of status application is approved before the child’s 18th birthday, and if the approval will make the child a citizen under section 320 of the Act (i.e., the Child Citizenship Act of 2000)
- people filing as a self-petitioning widow(er) using Form I-360 if the Form I-360 is approved and they are applying for lawful permanent residence. Note here too some special rules for sp0ouses of a USC who has died. If, at the time of the USC’s death, the alien spouse qualified as a surviving “widow(er)”, then the Form I-130 is deemed to be a widow(er)’s Form I-360. If the Form I-130 was approved before the USC died, it will be deemed to be an approved Form I-360. If it was still pending it can be approved as a Form I-360. This conversion option is not if the USC and alien spouse have not been married for at least 2 years when the USC spouse died.
- people filing for an immigrant visa as a self-petitioning battered spouse or child using Form I-360.
Other types of immigrants are also exempt from sponsorship and include (1) diversity immigrants, (2) special immigrants, and (3) refugees and asylees adjusting status.
Accompanying spouses and children must submit a photocopy of the principal’s I-864, but they do not need to submit a photocopy of the supporting documentation. A spouse or child is considered to be “accompanying” pa principal immigrant if they apply for an immigrant visa or adjustment of status either at the same time as the principal immigrant or within 6 months after the date the principal immigrant acquires LPR status.
Sponsor Requirements
An Affidavit of Support must be sufficient both at the time the adjustment of status application is filed and at the time the adjustment application is adjudicated. Since the I-864 is typically vetted at the NBC as part of the process of preparing the Form I-485 for adjudication, an adjudicator may generally rely on that determination that the I-864 is sufficient when filed. Some of the important sponsor requirements include the following:
- An individual (a sponsor cannot be a corporation or other entity)
- A USC or LPR (including conditional residents);
- At least 18
- Domiciled in the US or territory or possession of the US
- Maintains an income of at least 125% of the Federal Poverty Guidelines for the sponsor’s household size, including the immigrants being sponsored or previously sponsored. However, a sponsor on active duty in the U.S. Armed Forces who is petitioning for a spouse or child must only demonstrate income equal to at least 100% of the Federal Poverty Guidelines. Some rules to remember with respect to these guidelines are the following:
- Assets of the sponsor, the intending immigrant, or both may also be used to demonstrate this requirement.
- Earned benefits such as Social Security retirement, Unemployment and Workman’s Compensation may be included as income.
- If the petitioner sponsor cannot meet these requirements, the intending immigrant may obtain a joint sponsor who is willing to accept joint and several liability with the principal sponsor. The joint sponsor must demonstrate income or assets that independently meet the requirements. It is not sufficient for the combination of incomes to meet the threshold. Each joint sponsor must execute a Form I-864 that is submitted in addition to the Form I-864 submitted by the petitioner sponsor.
- The sponsor may use the income of any member of her own household who is at least 18 to help meet the household income requirement. In such a case, the sponsor and household member must complete Form I-864A, which must include a copy or transcript of the household member’s most recent tax return.
Each sponsor must submit either a tax transcript (these may be obtained by filing IRS Form 4506-T with the IRS)or a copy of her recent US Federal individual income tax return filed with the IRS. If a copy of the tax return rather then a tax transcript is submitted, the sponsor must also include copies of any and all IRS Forms W-2 and 009 that reflect income used to qualify. In the case of electronically filed tax returns, it is acceptable to submit a copy showing the return as it would have looked had it be filed on paper together with the IRS issued “declaration control number.” The termining income amount is the income, before deductions, on the sponsor’s income tax return.