In a situation where a Thai spouse has entered the US on a CR-1 or IR-1 Visa the Adjustment of Status process has already been completed in Thailand because these two visas are immigrant visas and therefore when a Thai Spouse receives an IR-1/CR-1 Visa at the US Embassy in Thailand, their permanent residence is already secured.
ARE THERE ANY PROBLEMS THAT CAN BE AVOIDED IN GETTING A THAI LOVED ONE'S STATUS ADJUSTED?
One major pitfall that can get people into trouble, but can be avoided is what I call the "Tourist Trap." I often see people try to adjust a Thai wife's status from a tourist visa to permanent residence. This can pose a major problem as this course of action can be interpreted by USCIS as an attempt to defraud the Immigration authorities. This is especially the case where a Thai fiancée enters the country, immediately gets married, and files for adjustment of status. Immigration authorities are empowered to impose penalties if it finds that a a fraud has taken place, the penalties could even include prison and possible deportation for the Thai National. Be Warned! If you want to marry your Thai fiancée in the United States it is best to use a K-1 fiancée visa to do so.
WHAT STATUTE DEFINES ADJUSTMENT OF STATUS?
Adjustment of Status is defined in §245 of the Immigration and Nationality Act (INA). §245(a) of the INA reads: The status of an alien who was inspected and admitted or paroled into the United States can be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:
1. the alien makes an application for such adjustment,
2. the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
3. An immigrant visa is immediately available to him (or her) at the time his application is filed.
HOW MANY PEOPLE ARE ALLOWED TO APPLY FOR ADJUSTMENT OF STATUS PER YEAR?
There are a limited number of green cards that are given out each year to immigrants and the US Immigration authorities have a quota of how many people can receive a green card each year. However, there is no limit on the number of green cards that can be issued to spouses of US Citizens. An adjustment application can be filed with the USCIS office that has jurisdiction over the district in which the applicant is residing.
I'M WORRIED ABOUT MY THAI LOVED ONE'S ADJUSTMENT OF STATUS APPLICATION BEING DENIED.
Since 9/11 it is less uncommon to see application for adjustment of status denied or stalled. However, with competent legal counsel this problem can be avoided. In the case of a Thai fiancée or wife the adjustment process generally progresses rather smoothly.
USCIS will adjust a Thai spouse's status when she meets the statutory requirements and no "negative factors" exist that would preclude adjustment. If and when a "negative factor" is discovered, the official at USCIS will look at the case generally to see if there exist "positive factors" to compensate for the "negative factors." Close kinship (for our purposes: the Thai National is married to a Citizen of the United States) is a very heavy "positive factor" that can only be outweighed by an even heavier "negative factor."
Using a tourist visa to get a Thai fiancée or wife into the US to Adjust status could be viewed as a "negative factor" and be used as grounds for denying an adjustment application.
DOES MY THAI FIANCÉE OR WIFE NEED TO STAY IN THE US WHILE THE APPLICATION FOR ADJUSTMENT OF STATUS IS PENDING?
A Thai National present in the USA on a K-3 Visa may depart the country without affecting a pending adjustment of status petition. So, if she needs to return to Thailand and subsequently come back to the US it is not a problem on the K-3 Visa, because the K-3 is a multiple entry visa.
A fiancée/spouse who enters the United States on a K-1 Visa does not have the same privileges as a Thai spouse holding a K-3 Visa. 8 CFR §245.2(a)(4)(ii) states that a Thai fiancé/ fiancée who departs the United States during the Adjustment of Status process shall be deemed to have abandoned the application and the process must be re-initiated.
A Thai fiancée/spouse, in the US on a K-1 Visa, may obtain an advance parole travel document before departure from the USA. A Thai spouse with Advance Parole will not be deemed to have abandoned a pending Adjustment of Status petition.
WHAT IS MY THAI SPOUSE'S STATUS AFTER ADJUSTMENT?
Once the Adjustment of Status application is approved the Thai spouse is deemed a conditional permanent resident for two years. Ninety days before the second anniversary of the approval of Adjustment of Status, the US Citizen may file to have the conditionality of the Thai spouse's permanent residence lifted. From this point forward the Thai spouse's permanent residence is not based upon their marriage to the US Citizen.
Thanks for reading,
Benjamin W. Hart, Esq.
Nothing in this article should be construed as a substitute for individual legal advice from a licensed legal professional in your jurisdiction.
------
Benjamin W. Hart is a US Attorney and Member of the American Immigration Lawyers Association. He resides in Thailand where he is Managing Director of Integrity Legal a legal service based in Bangkok and the United States. Visit Integrity Legal on the Web at http://www.integrity-legal.com