Foreign Students Who Want to Adjust Status in the U.S

Who is eligible to use an I-485 Adjustment form to apply for a Green Card? In general, applicants are eligible if they are the beneficiary of a visa petition that is current, or if they will be eligible immediately when a petition is filed with the Green Card application. This usually means we are referring to the spouse, parent or unmarried child of a US citizen, or a fiancée who has married her sponsor within 90 days of entry to the US.
 
If you are not an immediate relative of a US citizen, there are several situations in which you can not apply for a Green Card, for example,
 
· If you entered the US without being inspected by a US Customs officer
· If you overstayed a non-immigrant visa before filing I-485
· If you were employed in the US without authorization before filing the I-485
· If you are a fiancée who did not marry your original sponsor
· If you were admitted to US under the Visa Waiver Program,
· If you have a J1 or J2 visa and you are subject to a 2 year foreign residence requirement, unless you have waiver. You would need to get a release from the Vietnamese government. And, remember that marrying a US citizen does not remove the requirement of the 2 year foreign residence.
 
If you are a non-immigrant in the US and you marry a Permanent Resident, you will have a wait of several years until you can apply for a Green Card. During those years, you will need to find some way to remain in the US legally, such as by continuing your studies or by finding an employer to sponsor you. If there is no way for you to remain legally in the US, then it would be in your best interest to return to Vietnam until you are eligible to apply for an immigrant visa.
 
In Vietnam, the situation is simple: someone sponsors you, you have the visa interview, and if you are approved, you go to the US. However, the situation for foreign students and others on non-immigrant visas in the US may be more complicated, depending on their immigration status and some other factors. Also, they hear rumors or get advice from many friends, relatives or others who are not qualified to help them in immigration procedures. Therefore, it is essential to consult an experienced, trustworthy service agent before filing for Adjustment of Status in the US.
 
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Q.1. I am a foreign student on a J-1 visa who married a US citizen. My wife will give birth to our child soon. Wouldn’t the marriage and our child allow me to stay in the US
without fulfilling the 2 year foreign residence requirement?
 
A.1. You would have to prove to CIS that it would be an extreme hardship for you and your wife and child if you returned to Vietnam for two years. CIS rarely agrees that it is a hardship because you knew well about the 2 year home stay requirement even before you arrived in America.
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Q.2. I am 19 years old and arrived in the US on a B2 visa. The US Consulate in Vietnam issued the tourist visa to me even though they knew that my parents have Green Cards and that they filed a visa petition for me. My visa petition will not be current for at least a year. Can I remain in the US to wait for that or should I go back to Vietnam?
 
A.2. If you want to remain in the US beyond the expiration of your B2 visa, you should apply to CIS for an extension of the B2, or a change to F-1 student visa. You should not remain in the US if CIS does not allow an extension or change of visa.
 

 
ROBERT MULLINS INTERNATIONAL www.rmiodp.com
Immigration Support Services-Tham Van Di Tru

9070 Bolsa Avenue, Westminster CA 92683 (714) 890-9933 
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