Serotte Reich, LLP – Immigration Law

Adjustment of Status – Marriage to U.S. Citizen

Adjustment of Status Through Marriage to a U.S. Citizen

If 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.

 

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.

 

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

Applying for Adjustment of Status requires submitting a comprehensive package to USCIS emphasizing the legitimacy of the marital relationship as well as the applicant’s eligibility for adjustment of status. The two main forms are:

• § I-130 – Petition for Immediate Relative
• § I-485 – Application to Adjust Status

Additional ancillary forms to be submitted include:

•  § I-693, Medical Exam Results
• § I-864, Affidavit of Support (applicable version)

Lastly, to establish or preserve employment eligibility and travel privileges (especially if the foreign national will not continue to maintain their nonimmigrant status or is not in current nonimmigrant status), other forms that may be submitted include:

• § I-765, Application for Employment Eligibility
• § I-131, Application for Advance Parole

Caution: Once an application for adjustment of status has been filed, the applicant may not be able to depart the U.S. until advance parole is issued (in certain situations, if the applicant is an H or L nonimmigrant who is concurrently maintaining their nonimmigrant status, they may be able to depart the U.S. without facing adverse consequences). Should an applicant depart the U.S. while the application is pending, but before advance parole is issued, they may be considered to have abandoned their application to adjust status.

 

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

Form I-130 – Petition for Alien Relative

The I-130 is the form that the U.S. citizen spouse (Petitioner) must file for their foreign national spouse (Beneficiary). Depending on the U.S. citizen’s location, the form is either filed with USCIS or at an overseas location. If the U.S. citizen is a resident of the U.S. or is temporarily abroad, the form must be filed with the appropriate USCIS Service Center in the U.S. However, if the U.S. citizen is overseas, they can file the form with either a USCIS International Office or a U.S. Consulate, as appropriate.

The purpose of the form is to establish the legitimacy of the marital relationship, therefore, it is imperative to submit evidence of the bona fides of the marital relationship including but not limited to photographs of the couple together and with friends and family at various occasions and events; evidence that the couple co-mingles their assets, such as joint bank account statements, joint credit card bills; copies of mail addressed to the couple at the marital residence; evidence that both spouses have named the other as beneficiary in any life insurance policies; evidence of joint health or vehicle insurance, etc.

 

Form I-485 – Adjustment of Status

The I-485 is the form that the foreign national spouse must file to apply for adjustment of status within the U.S. The I-485 form inquires about an individual’s status in the U.S., any prior immigration or criminal problems, and any other issues that may cause an individual to be inadmissible to the U.S. or be ineligible to adjust status within the U.S.

One of the fundamental requirements to be eligible to adjust status is that foreign national spouse last entered the U.S. lawfully (i.e. after inspection by U.S. immigration officials). If the foreign national has since failed to maintain status and/or worked without authorization in the U.S., as an immediate relative, they may still be able to adjust their status from within the U.S.

If the foreign national spouse last entered the U.S. without adhering to the proper inspection procedures, they will likely not be eligible to adjust status, but may be eligible for IVP (with or without a hardship waiver).

 

Form I-693, Medical Exam Results 

The Form I-693 is used to determine whether the foreign national spouse is inadmissible to the United States on medical grounds. The medical examination must be completed by a USCIS approved civil surgeon. A list of USCIS approved civil surgeons can be found at www.uscis.gov.

After the medical examination is completed, the civil surgeon will provide the foreign national spouse with a sealed envelope. The envelope must remain sealed when filed.

 

Form I-864, Affidavit of Support

There are different versions of the Affidavit of Support requirement, the use of each dependent upon the situation (I-864EZ, I-864, I-864W, I-864A). The I-864 is completed by the U.S. citizen spouse. The purpose of the Affidavit of Support requirement is to demonstrate that the U.S. citizen will be able to provide sufficient financial support to avoid having the foreign national spouse become a public charge.

Form I-864P (updated annually) provides the minimal income guidelines to satisfy the Affidavit of Support requirement. The applicable amount is dependent upon the U.S. citizen’s household size (including the foreign national spouse). If the U.S. citizen spouse does not have enough income and/or assets to meet the income requirements, a Joint Sponsor or Household Member may be used.

 

Form I-765 – Application for Employment Authorization

The I-765 can be filed concurrently with the adjustment of status paperwork to establish work employment eligibility while the adjustment of status paperwork is pending. Upon approval, the foreign national is issued an Employment Authorization Document (EAD), which is valid for any position with any employer, including for self-employment purposes. In most cases, the EAD is issued within 60-90 days after filing.

 

Form I-131 – Application for Advance Parole

The I-131 can also be filed concurrently with the adjustment of status paperwork to allow for international travel privileges while the adjustment of status application is pending. Upon approval, the foreign national is issued an Advance Parole Document, which is valid for multiple entries returning to the U.S. In most cases, the Advance Parole Document is issued within 60-90 days after filing.

Caution: If the foreign national has any unlawful presence issues or concerns, travel outside of the U.S. is ill-advised even if you have an approved Advance Parole Document. If the foreign national is unsure whether they have any unlawful presence issues, they should thoroughly discuss the matter with an immigration attorney. Please note that a failure to maintain status or being out of status is not the same as unlawful presence.

 

Expectations After Filing Adjustment of Status through Marriage to a U.S. Citizen

Receipt Notices

After all of the paperwork is filed, the foreign national will receive Receipt Notices within 2-3 week of filing for each application filed (I-130, I-485, I-765 and/or I-131). The Receipt Notices will assign the foreign national an Alien # (if they do not have one already). The Receipt Notices are also important for following up with USCIS in the future on these matters and checking the case status online.

Biometrics Notice

Approximately 2-3 weeks after the Receipt Notices are generated, USCIS will schedule the foreign national for a Biometrics Appointment at a local USCIS Field Office or an Application Support Center. At that appointment, the foreign national will have their picture and fingerprints taken so that the necessary security background checks can be completed.

Request for Evidence

If USCIS determines that the information/documentation submitted is inadequate to satisfy the applications requirements and further information is needed, they will issue a Request for Evidence (RFE). The Request for Evidence will specifically state the documents/information they are seeking and a timeline under which they need to be submitted (all requested information should be submitted at the same time). Failing to respond to the RFE may result in the denial of the application(s).

Interview Notice

Approximately 2-3 weeks after the Biometrics Appointment, USCIS will schedule an interview on the pending adjustment of status application. The interview notice will list documents that need to be brought to the interview and will require that both the foreign national and the U.S. citizen spouse attend the interview.

EAD/Advance Parole Documents

EAD and Advance Parole Documents are usually issued within 60-90 days after filing.

 

 

The Marriage-Based Adjustment of Status Interview

Purpose of the Interview

The purpose of the interview is two-fold. The first purpose is to ensure that the marital relationship is legitimate and not for the purpose of obtaining immigration benefits. The second purpose is to ensure that the foreign national does not have any past criminal or immigration problems that would prevent them from being eligible for a green card through the adjustment of status process.

During the Interview

When the foreign national and U.S. Citizen spouse first arrive for the interview, the adjudicating officer is likely to begin by reviewing the paperwork. If they have any concerns about any past immigration and/or criminal history issues, they are likely to ask questions about those at this time also. Lastly, the officer will also ask questions regarding the marital relationship to ensure that the couple have a legitimate marital relationship. Some of the questions might include topics such as where the couple first met, which side of the bed the other shares, their wedding, information about the other’s family, etc. In some circumstances, whether it be a random selection, or concerns regarding the particular couple, the couple may be separated for this part of the interview process.

Each case is different and brings unique facts and circumstances to be addressed at the interview. Couples with issues may benefit from consulting with an immigration attorney who can help prepare them for what to expect at the interview and even attend the interview with them in order to assist with any responses to questions of law.

Possible Outcomes of the Interview

The interview usually concludes with one of three possibilities:

Approval

• Ideally, the officer will end the interview by letting the foreign national know that they have been approved for a green card.
• At this time, if possible, the foreign national should ask the adjudicating officer to stamp their passport as proof of their lawful permanent resident status.

Need Supervisory Review/Background Checks Not Cleared

• In some cases, the adjudicating officer might state that while everything looks good, the file needs supervisory review before approval and/or that they are still awaiting for background checks to clear.
• USCIS is likely to provide an update within 30-60 days after the interview.

Issue w/Case

• In some cases, the adjudicating officer might feel that there is an issue with the case. They will not provide a decision at that time and will follow up within 30-60 days.

 

Conditional Lawful Permanent Residency v. Lawful Permanent Residency

If the case is approved, but the marriage is less than two years old at that time, the foreign national will receive conditional permanent residency, which bestows all the benefits of lawful permanent residency, but only for a period of two years. Therefore, the conditional permanent resident card is valid for two years from the date of approval. See Petition to Remove Conditional Permanent Resident Status.

If the case is approved, and the marriage is over two years old at that time, the foreign national will receive lawful permanent residency and receive a “green card” valid for a period of ten years.

In the future, the foreign national can apply for naturalization to become a U.S. citizen if they meet certain requirements. See Naturalization.

 

 

References

INA §203, §245

USCIS Adjudicator’s Field Manual Ch. 21 and Ch. 23

 

Revised by Nisha V. Fontaine, Esq. on February 18, 2012