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:
In addition to Form I-130 and I-485, two ancillary forms must also be submitted:
Finally, if the foreign national would like to travel or seek employment, two forms are typically filed with the adjustment of status application:
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
The Hintzen Law Firm, PLLC