Marriage Based Green CardDecember 18, 2013

When a foreign national marries a U.S. citizen, the foreign national becomes an immediate relative of the U.S. citizen spouse and may be able to apply for U.S. permanent residency as a result of the marital relationship. The biggest advantage of being classified as an immediate relative for U.S. immigration purposes is not being subject to preference categories and their accompanying priority date backlogs, since immigrant visas are always available under the immediate relative category. This article explains the process of family based adjustment of status through marriage to a U.S. citizen and the time frames involved.

Requirements for Adjustment of Status through Marriage to a U.S. Citizen

The main requirements for a foreign national to apply for adjustment of status (green card) from within the U.S. based on their marriage to a U.S. citizen are (1) to be physically present in the U.S., whether in current nonimmigrant or in expired nonimmigrant status, (2) to have last entered the U.S. lawfully (after inspection and admission by a U.S. immigration official), and (3) to be admissible to the United States (a foreign national’s eligibility may be effected if the foreign national has a previous criminal or immigration history that may render them inadmissible to the United States.)

If the foreign national is not physically present in the U.S., or did not last enter the U.S. lawfully, they may be able to apply for lawful permanent resident status through Immigrant Visa Processing (IVP). If the foreign national is inadmissible to the U.S. as a result of previous criminal or immigration violations, they may be able to apply for waiver(s) to waive those grounds of inadmissibility.

It is important to note that adjustment of status is up to the discretion of the USCIS officer handling each case. Even if an alien is eligible for adjustment and is not blocked by any statutory bars, the USCIS may still deny an application for adjustment of status. In practice, adjustment of status will be granted where the alien is statutorily eligible and there are no “Negative Factors.”

Application Process for Adjustment of Status through Marriage to a U.S. Citizen

The application process for adjustment of status isn’t easy. It requires the submission of an extensive number of forms and supporting documentation. The purpose of this process is to establish the legitimacy of the marriage and the applicant’s eligibility for adjustment of status. The two forms required to be filed with every adjustment of status based on marriage to a U.S. citizen are:

• Form I-130 – Petition for Immediate Relative (USCIS filing fee $420)
  • The purpose of Form I-130 is for a citizen or lawful permanent resident of the United States to establish the relationship to certain alien relatives who wish to immigrate to the United States.
• Form I-485 – Application to Adjust Status (USCIS filing fee $1070) — the purpose of Form I-485 is to apply to adjust your status to that of a permanent resident of the United States.

In addition to Form I-130 and I-485, two ancillary forms must also be submitted:

• Form I-693 — Medical Exam Results
  • Generally, all applicants filing for adjustment of status to that of a lawful permanent resident must submit Form I-693 completed by a designated civil surgeon. Form I-693 is used to report results of a medical examination to USCIS. The examination is required to establish that an applicant is not inadmissible to the United States on public health grounds.
• Form I-864 — Affidavit of Support
  • This form is required for most family-based immigrants to show that they have adequate means of financial support and are not likely to rely on the U.S. government for financial support.

Finally, if the foreign national would like to travel or seek employment, two forms are typically filed with the adjustment of status application:

• Form I-765 — Application for Employment Eligibility
  • Certain aliens who are temporarily in the United States may file this form to request an Employment Authorization Document (EAD). Other aliens who are authorized to work in the United States without restrictions must also use this form to apply for a document that shows such authorization.
• Form I-131 — Application for Advance Parole
  • To apply for a re-entry permit, refugee travel document or advance parole travel document, to include parole into the U.S. for humanitarian reasons. A re-entry permit allows a permanent resident or conditional to apply for admission to the U.S. upon returning from abroad during the permits validity without the need to obtain a visa. “Parole” allows an alien to enter the U.S. for a specific purpose. Advance Parole is the re-entry permit that you must apply for if you wish to re-enter the U.S. after foreign travel while you are waiting for your marriage based green card or adjustment of status green card. If you do not have the Advance Parole re-entry permit and you leave the U.S., you may be denied re-entry and your pending application for adjustment of status will be considered abandoned.

How Long Does the Process Take?

Within 2-3 weeks of filing the applicant will receive a receipt their application has been accepted by USCIS. Within 2-3 weeks of the receipt, USCIS will schedule the applicant for a Biometrics appointment (picture, finger prints, background check). Within 3-4 months of the initial filing the applicant will be interviewed by USCIS and subsequently issued a Green Card provided there are no complications with the application.

Can You File Adjustment of Status Yourself?

You may apply for adjustment of status yourself. However, an experienced immigration attorney can help you prepare the forms and supporting documents with much less time involved and with much more accuracy. Furthermore, the attorney will be able to inform you of any potential problems in your particular case and how to deal with those problems. Lastly, the USCIS will usually send all documents and inquiries to your attorney. This is particularly important if you will be changing addresses in the future.

Ryan A. Hintzen

Attorney

The Hintzen Law Firm, PLLC