Helping Clients Gain Green Cards After Marriage
Adjustment of Status
based on marriage
It is often said that love knows no bounds! But, when it comes to U.S. permanent residency (applying for a Green Card) and citizenship, the U.S. government does. Fortunately, the path toward permanent residency, and even citizenship, for immigrants who wish to unite and live in the U.S. with their U.S. citizen partners is very much possible.
If you are in a bona fide (genuine, real, or otherwise honest) relationship with a U.S. citizen or permanent resident, you can become a Green Card holder and gain status as a permanent resident in the U.S.
If you are the fiancé(e) of a U.S. citizen and you reside abroad, the first step is to gain entry into the U.S. on a K-1 visa—following the approval of Form I-129F.
Once the foreign national fiancé(e) is issued a K-1, the visa will remain valid for six (6) months from the date of issuance, with only one U.S. entry being permitted under the K-1 visa. The intending immigrant and the U.S. citizen spouse will have 90 days within which to get married.
The process slightly differs if you are the spouse of a U.S. citizen or Green Card holder, as you will gain entry into the U.S. on either a K-3 or an IR1 visa—following the approval of Form I-130.
K-3 visas can help existing spouses live together in the U.S. while waiting for Form I-130 to be approved—this is an ideal option for couples who do not want to remain separated while waiting for their case to be processed. A K-3 visa is valid for two years, and you are permitted as many as three entries into the U.S.
IR1 immigrant visas and the ensuing consular processing phase, on the other hand, require that the intending immigrant attend his or her interview abroad, with the Green Card arriving in the mail shortly after the intending immigrant’s entry into the U.S.
In either case, with the right immigration attorney by your side, you increase your chances of successfully obtaining permanent residency in the U.S. (Green Card).
What Are Some Common Inadmissibility Reasons?
There are a number of reasons you could be disqualified from receiving a Green Card, even if you meet its basic eligibility requirements. Some examples of otherwise-eligible Green Card applicants becoming inadmissible include:
- Not marrying the U.S. citizen named on the K-1 visa application, even if the intending immigrant marries another U.S. citizen;
- Not being inspected / admitted by a U.S. immigration officer (a/k/a Entry Without Inspection or EWI) – hence requiring a waiver;
- Using the visa waiver program, which allows most citizens or nationals of participating countries to enter the U.S. for 90 days or less for tourism or business purposes without obtaining a visa, to pursue permanent residency; or
- Submitting or having submitted false information / documents to any U.S. immigration official at any time.
Who Should File a Marriage-Based Adjustment of Status?
If you were born outside the United States, entered the U.S. by legal means with a valid visa or under the visa waiver program (but without preconceived intent to immigrate), married a U.S. citizen, and are residing in the U.S., you have the option of filing a marriage-based adjustment of status application in order to become a Green Card holder and secure U.S. permanent residency.
Under U.S. family immigration law, your marriage to a U.S. citizen automatically renders you an “immediate relative.” Typically, this status means that you are eligible for a Green Card as soon as you complete the adjustment of the status process. However, if you are not deemed admissible to the U.S. based on potentially disqualifying factors, such as a criminal background, your case can become exponentially more challenging.
How Does the Adjustment of Status Application Process Work?
By filing the applicable immigration forms and providing supporting documentation concurrently as part of an adjustment of status packet, you should provide U.S. Citizenship and Immigration Services (USCIS) with everything that the Agency needs in order to review your application, process the case and make a decision as expeditiously as possible.
The U.S. citizen spouse will file Form I-130, Petition for Alien Relative, with the USCIS office to establish the existence of a qualifying relationship with the foreign national spouse. The intending immigrant will also file Form I-130A, Supplemental Information for Spouse Beneficiary, so as to provide specific biographic information to the U.S. government.
Supporting documents must include evidence of the petitioning spouse’s U.S. citizenship or lawful permanent residence, whichever is applicable, such as a copy of their:
- birth certificate;
- naturalization or citizenship certificate;
- unexpired U.S. passport; or
- green card.
Additional supporting evidence should include proof of the bona fide marriage, including:
- A copy of your marriage certificate;
- Evidence you or your spouse terminated any prior marriages, if applicable;
- Proof of legal name change, if applicable;
- Documentation showing joint ownership of property;
- Lease showing joint tenancy of a common residence;
- Documentation showing co-mingling of financial resources (e.g., joint checking and/or savings account, joint credit cards, etc.);
- Birth certificate(s) of child(ren) born to petitioner and intending immigrant;
- Affidavits sworn to or affirmed by third parties having personal knowledge of the bona fides of the marital relationship (affidavits should contain: full name, address, date and place of birth, relationship to the couple, and explanation of how knowledge of marital relationship was acquired);
- Health insurance policies held jointly as husband and wife;
- Automobile insurance policies held jointly as husband and wife;
- Life insurance policies with spouse as beneficiary;
- Utility bills with both names on invoices;
- Correspondence to the couple (at the same address) from friends and family; or
- 25–30 photos of petitioner and beneficiary with friends and family.
You must also complete Form I-485, Application to Register Permanent Residence or Adjust Status, and submit it to USCIS. For the non-resident applicant, supporting documentation for this form include:
- Two current passport-style photos;
- A copy of a government-issued photo ID, such as a passport;
- A copy of a long-form birth certificate;
- Proof of inspection, i.e., having been checked by an immigration officer before last entering the U.S.; and
- Certified dispositions for any criminal charges or convictions.
Your U.S. citizen spouse must also file Form I-864, Affidavit of Support, to demonstrate their ability to support you financially, i.e., that you will not become a financial burden upon the U.S. For the U.S. citizen spouse, supporting documentation often includes:
- A copy of their individual federal income tax return for the most recent tax year;
- W2s for the most recent tax year, or documented evidence describing why they were not required to file their federal return;
- Copies of any 1099s and other evidence of reported income for the most recent tax year; and
- If necessary, they may also provide the information above for the last three tax years, as well as copies of their pay stubs from the most recent six months and/or a letter from their employer.
The intending immigrant must also complete a medical exam through a USCIS-approved doctor. The results are noted in Form I-693, Report of Medical Examination and Vaccination Record, which is then submitted along with the adjustment of status package (or provided at the time of the adjustment interview).
What Happens After Your Marriage-Based Adjustment of Status Application Has Been Filed?
Once your application has been filed, you may not be able to depart the U.S. until you are granted advance parole, as you will potentially be deemed to have abandoned your case. To prove or maintain your right to work in the U.S. and travel abroad, you are encouraged to file Form I-765, Application for Employment Authorization and Form I-131, Application for Travel Document, along with your initial submission. It can take several months from the date of filing to receive your combo work and travel document.
After your application has been received, USCIS will issue a receipt notice to you, along with a notice requiring that you attend your fingerprinting / biometrics appointment.
You and your U.S. citizen spouse will ultimately be required to attend the adjustment of status interview which, as of the writing of this article, can take anywhere from nine (9) to twelve (12) months after filing the application. USCIS may request additional information via mail or ask for a follow-up interview. Your attorney is allowed to accompany you to the interviews, which can help you and your spouse navigate your immigration journey with confidence.
What is the processing time for adjustment of status to be approved?
The processing times for adjustment of status applications can take anywhere from 8-14 months if you are married to a U.S. citizen or 29-38 months if you are married to a permanent resident (Green Card holder). The lengthy timelines are the result of several factors, such as an influx of new cases, government staffing issues, and the global pandemic.
How can I check the status of my case?
You may check the status of your case online at any time. USCIS uses a 13-character code called a “receipt number” to identify and track applications and petitions for immigration benefits. You can find the receipt number on your I-797, Notice of Action, i.e., “receipt notice”.
The receipt notice confirms that USCIS has received your application or petition and that it is currently being processed. And, eventually, you will receive a decision on your I-130 petition and I-485 application for adjustment of status.
Once approved, you and your attorney will receive a notice in the mail, and your Green Card will arrive in the mail shortly thereafter. After becoming a legal permanent resident, the road to naturalization and citizenship can begin! The support of an experienced immigration attorney can ensure that your immigration journey will be successful (and yes, even enjoyable).