Top 10 Mistakes to Avoid When Filing a Marriage-Based Adjustment of Status with a B1/B2 Visitor Visa

Many individuals on visitor visas (B-1/B-2 visa) in the United States often consider adjusting their status, particularly after significant life changes such as marriage to a U.S. citizen. This process, however, is not straightforward and requires careful adherence to USCIS guidelines. Failure to navigate these steps correctly can lead to delays, denials, or more severe legal consequences.

1. Misunderstanding the Intent of a Visitor Visa:

The B-1/B-2 visitor visa is intended for temporary visits to the U.S. for business, pleasure, or medical treatment. It’s crucial to understand that this visa does not inherently provide a pathway to permanent residency, so filing for Adjustment of Status soon after entry on a visitor visa may be perceived as visa fraud, suggesting misrepresentation of intentions. Confirmed visa fraud can result in severe penalties, including deportation and future inadmissibility to the United States.

2. Overstaying Your Visa:

One of the most critical mistakes is overstaying the period authorized on your I-94 Arrival/Departure Record. This document can be found online on the I-94 Official Website or as a paper document given upon entry. It records the date of arrival, visa status, and the date by which one must depart the U.S. Overstaying can lead to unlawful presence, which can result in inadmissibility for future U.S. entries. Ensure that you file for  Adjustment of Status well before your authorized stay expires if possible. You can still obtain a Green Card if you are an overstay if you are married to a U.S. Citizen. If you are married to a Green Card holder, you are out of luck if you are an overstay as you have to be within your I-94 period if your petitioner is a Green Card holder. In this scenario, you would have to wait for your spouse to become a U.S. Citizen before they can apply for you.

3. Inadequate Documentation:

Failing to provide comprehensive and accurate documentation can significantly delay your Adjustment of Status process. This includes evidence of your lawful entry (such as a stamped passport and I-94 record), proof of your relationship with a U.S. Citizen or permanent resident (if applicable), and financial documents demonstrating your ability to support yourself or being supported. If inadequate information is provided again after a USCIS Request for Evidence, the application is often automatically denied, underscoring the need for thorough and accurate initial submissions.

4. Not Maintaining Legal Status:

While awaiting your Adjustment of Status decision, it’s essential to maintain legal status. If your visitor visa expires before filing Adjustment of Status, or if you violate the terms of your visa (e.g., unauthorized employment), your Adjustment of Status application may be jeopardized depending on whether your spouse is a US Citizen or Green Card holder. If the visitor visa expires while awaiting Adjustment of Status adjudication, the applicant is generally in a period of authorized stay but does not have a formal immigration status. This unofficial status continues until the Adjustment of Status decision is made.

5. Failing to Address Medical and Background Checks:

All Adjustment of Status applicants must undergo a medical examination and background checks. Neglecting to complete these or failing to disclose pertinent information can result in application delays or denials. Adjustment of Status applicants must obtain background checks from the appropriate legal authorities, typically in their home country or any country where they've resided and medical issues that can bar status adjustment include certain communicable diseases or failure to meet vaccination requirements.

6. Underestimating the Public Charge Rule:

The Public Charge rule is a criterion used by USCIS to determine if an individual is likely to become dependent on government assistance. Ensure you provide sufficient evidence of financial stability or support to address this requirement. To refute potential public charge concerns, Petitioners can provide evidence such as employment letters, bank statements, tax returns, and health insurance coverage, demonstrating financial stability and self-sufficiency.

7. Incorrectly Filing Forms:

Filling out USCIS forms can be complex. Simple errors in form completion or filing the wrong forms can lead to processing delays or rejections. Pay close attention to details and instructions when completing forms like I-485, I-130 (if based on marriage), and I-864 (Affidavit of Support). Common errors in filling out forms like I-485 and I-130 include incorrect fee payments, missing signatures, and failure to answer all questions. 

8. Misjudging Processing Times:

It’s important to have realistic expectations regarding the processing times for Adjustment of Status applications. These can vary widely based on several factors, including your location and the current USCIS workload. Processing times for Adjustment of Status applications vary by USCIS office. Generally, offices in larger cities or high-immigrant populations have slower processing times compared to smaller or less busy offices. New York is the exception as New York County’s processing times have consistently been better than Brooklyn or Queens.

9. Neglecting to Update USCIS on Changes:

If you move, change your phone number, or have other significant life changes during your Adjustment of Status process, you must inform USCIS promptly. Failure to update your contact information can lead to missed notifications and complications in your case. In a case where an individual failed to report a change of address, their interview notice was sent to an old address, leading to a missed interview and subsequent application denial. Timely updating of personal information with USCIS is crucial. If you have an immigration lawyer filing your case for you, they will also receive a copy of all correspondence so that is one of the best reasons to work with an immigration lawyer. USCIS is extreme and unforgiving when it comes to not responding to their correspondence on time.

10. Trying to Navigate the Process Without Legal Advice:

While some individuals successfully navigate the Adjustment of Status process alone, having an experienced immigration attorney can be invaluable, especially in complex cases. Legal guidance can help avoid errors, offer peace of mind, provide representation in interactions with USCIS, offer strategic advice tailored to individual cases, and can keep clients informed about policy changes and current processing times. I often tell my clients that although we provide so much value in filing properly executed forms, so much of our value comes from the guidance we provide for the entire one-year period that follows the filing of the case. One year is a long time to suffer anxiety and insecurity over your application. 

Successfully adjusting status from a visitor visa demands attention to detail and an understanding of immigration law. Avoiding these common mistakes enhances the chances of a favorable outcome. For those seeking assistance or facing challenges in their immigration journey, legal support can prove invaluable in navigating this critical process. Should you or your loved one have any questions or need representation, please do not hesitate to call us, email us at info@khunkhunlaw.com, or review other options to get in touch with us for an immigration consultation. We have represented many clients going through the family-based immigration process with successful results even with the most difficult set of facts.