Adjustment of status vs consular processing
There are two ways for someone to become a permanent resident (green card holder) through marriage. The first way is by consular processing, which means that the foreign national spouse submits paperwork when he or she is living outside the US, and the US consulate in the applicant’s home country will process the paperwork, and grant the permanent resident card (“green card”).
The second method is called “adjustment of status”, where the foreign national spouse is living in the U.S. and wishes to remain living in the U.S. until he or she receives the green card. Although there can be some tactical reasons why someone would prefer to use one method over the other, if the foreign spouse is living in the U.S. he or she cannot use consular processing without leaving the country, and if the foreign spouse or fiance lives outside of the US, in order to use the adjustment of status method he or she must come to the US first, usually on a fiance visa, tourist visa, or work visa.
Typically, in consular processing cases the US spouse will file a petition first, and once the petition has been approved, the next (and final step) would be for the foreign national to file additional papers requesting the green card. while in adjustment of status cases, all the documents and forms are typically filed at the same time.
If the foreign spouse comes to the U.S. on a fiance visa, once the couple get married, the adjustment of status application should be filed before the 90 day period of the fiance visa runs out. If the foreign spouse wishes to work in the U.S. or to travel outside the U.S. while waiting for approval, there are additional forms that are required. To get a work visa you have to file a form is called the “application for employment authorization” form, while for permission to travel while the adjustment of status case is pending, you have to file a form requesting “advance parole”, which means permission to leave the country temporarily and return. .
Eligibility requirements for adjustment of status
There are 3 requirements to adjust status. These are::
- The foreign spouse must be physically present in the U.S.
- The foreign spouse must have entered the U.S. after inspection or parole.
- The foreign spouse is admissible .
“Inspection” means that the immigration officer at the border or airport has determined that the person is allowed to enter the U.S. lawfully. “Parole” means that the immigration officer is not 100% certain whether or not the person can enter the U.S. lawfully (typically where the foreign national is claiming political asylum) but is allowing him or her entry on a temporary basis until the issue is determined.
“Inadmissibility ” refers to the fact that under the U.S. immigration laws persons who have committed certain crimes, are drug addicts, prostitutes, have certain communicable diseases, suffer from a dangerous mental illness or condition, or who have committed immigration fraud are not allowed to enter the U.S. absent a waiver or some kind of special situation.
Waivers of inadmissibility are hard to get. One example would be if the applicant had a minor criminal record from years ago with some extenuating circumstances.
It is important to note that, in the case of marriage based green cards, as long someone has entered the country legally through inspection or parole, he or she would still be able to remain in the U.S. and adjust your status even if their visa has expired and they are “out of status”. However the case may be more difficult.
Immigration forms required to adjust status
Numerous forms are required. these include but are not necessarily limited to the following:
- I-130, the petition referred to above.
- I-485 the application for adjustment of status.
- I-693 Results of Medical exam (prepared by the surgeon who is on the USCIS approved list and given to the foreign spouse in a sealed envelope.).
- I-864- Affidavit of Support. (see discussion below).
Forms frequently change, and the instructions that are provided are often difficult to understand, and sometimes self-contradictory. Although some people can complete all the forms themselves and end up with the green card, if you have never done this before,, there are pitfalls and mistakes that can be easy to make which can either cause unnecessary delays, or even torpedo the case. It is almost always a better idea to use an experienced immigration attorney than to try to go it alone.
You cannot file for adjustment of status until a visa is immediately available. For immediate relatives, including spouses of U.S. Citizens, because there is no quota for immediate relatives, a visa will always be immediately available, but for other alien relatives, there will be waiting periods before a visa will become available.
The good news is that for a spouse of a green card holder, the waiting period is quite a bit shorter, perhaps a year to 18 months. You can check your visa availability using the Visa Bulletin.
It is a very good idea to retain copies of proof of filing on all documents that you submit to USCIS. You will also get notices from them as to receipt and you should retain these as well.
The affidavit of support form
The U.S. government is concerned that some immigrants may come to this country and end up becoming a so called “public charge”, i.e. on public assistance. Therefore the USCIS requires the US spouse to guarantee that, if the green card is granted, he or she will support the foreign spouse for a period of time. In order to satisfy the requirements in the affidavit of support, the US spouse must prove that he or she either earns sufficient income or has sufficient assets. The US spouse will have to provide copies of income ta returns, IRS transcripts, and, if the US citizen spouse’s income is not sufficient, copies of bank statements, brokerage statements, etc to document assets.
In order to satisfy the USCIS the sponsor must have “stable’ income which is earned in the United States and through a permanent job, social security payments, or the like, or substantial assets.
Sometimes it is necessary to use a joint sponsor who will have to submit his or her own affidavit of support.
Sometimes the alien spouse can satisfy the USCIS by filing a “declaration of self sufficiency form”.
Other documents that you will need to adjust status
You will also have to provide USCIS with documentation in support of the validity of the marriage. These are the most common documents that are submitted:
- Photographs of you and your spouse on vacation together, on your honeymoon, wedding pictures, pictures of you and your spouse at family gatherings or special events, such as moving into a new home or apartment, etc.
- Sworn affidavits from people who can vouch for the relationship.
- Copies of leases showing both names, copies of bills with envelopes, copies of documents such as driver’s licenses to prove that you live together, bank statements from joint bank accounts, etc.
- Copies of deeds for jointly owned property.
- Copies of joint income tax returns.
- Photographs and bills for engagement rings and wedding rings.
- marriage certificate or license.
- Birth certificates for any children of the marriage.
The above list is non comprehensive. Any documents or photographs that tend to establish that the marriage is genuine are good. The most important documents are those that prove that the married couple live together and are sharing their finances.
You will need to keep the originals of all document submitted in the “packet”, preferably in the same exact order, as you will almost always have to bring them to the final interview by USCIS and may have to refer to the documents during the interview or show the originals to the immigration officer.
Optional forms you may want to submit with adjustment of status
The adjustment of status procedure can take some time. It is best to plan for it to take up to a year. In the meantime, the foreign spouse may want to work or may want to travel outside the country. The following form or forms would be required for each case:
- I-765, Application for a work permit.
- I-131, application for “advance parole”
It may take anywhere from 3 to 6 months to get the work permit authorization card.
If you leave the country without permission from USCIS, depending on the type of visa that you have, your adjustment of status case may be deemed to have been abandoned. Also, depending on your particular situation, leaving the country, even with permission, could be dangerous and you might not be able to return. During the Trump administration many people, no matter what their situation was, wisely chose not to travel out of the country until they had gotten their green card because of horror stories where married people who left the country were not allowed back.
Biometrics, fingerprinting and medical exam requirements
A physical examination by a government approved doctor is required as part of the adjustment of status process. The doctor is looking to see if you have a communicable disease. Recently, HIV is no longer considered to be a disqualifying disease. When you go for the physical your fingerprints will also be taken, as it is in the biometric appointments that some visa holders have to take periodically. You will be given the results in a sealed envelope, which you should not open.
For marriage based visas, an interview is almost always required
The only time you will not have to have an in person interview with an immigration officer is if you have been married for a long time and have submitted tons of documentary evidence and/ or you have children together. If you have been married for a long time or have children together the interview will likely be short and largely perfunctory, unless of course, there is some obvious red flag in the application itself or in the documents that you have submitted.
You will be sent an appointment letter several weeks in advance. It is very important that you show up for the interview. Therefore, if you move or change your address at any time during the pendency of your case, it is essential that you provide the USCIS with your current address.
For the adjustment of status interview, you actually have a constitutional right to have an attorney present. However, an attorney’s role is very limited, he or she can only take notes and answer any questions which are posed directly to him by the immigration officer, or provide further information, if requested to.
If you “pass” the interview, you may be told right away, and sometimes you can even get the officer to stamp your passport on the spot to show that the visa has been granted. Usually you have to wait to receive the green card in the mail.
Although you can almost never appeal a denial in a consular processing case, it is possible to appeal a decision of a denial of adjustment of status.