Marriage Based Adjustment of Status FAQ

What forms should I submit when filing a marriage based adjustment of status?

The qualifying petitioner should complete and sign the I-130 petition. The beneficiary applicant should submit the I-485 adjustment of status form, I-865 Affidavit of Support, applicable I-765 work authorization application and Advanced Parole form. There are application fees for the I-130, I-485, I-765 and the Advanced Parole documents. These documents should be sent together in one envelop. The beneficiary may complete the medical examination and submit it with the rest of the initial forms. However, the lengthy processing time of the Adjustment of Status may render the medical examination invalid due to expiration (there is now a 2 year validity date, but continue to check for changes). Therefore, I currently recommend that the applicant complete the medical examination closer to the interview date or upon request from the USCIS.

I am outside of the United States, what is the process to apply for a marriage based green card?

Your U.S. citizen or Permanent Resident Spouse must file the I-130 Petition with the USCIS. Your spouse must prepare the I-130 form and the I-130A form, properly sign the form and include required evidence with the filing fee. The USCIS first will review the forms and the evidence submitted to determine whether the union is a bonafide marriage. Therefore it is important to include accurate and strong evidence of your relationship. Proof of a bonafide relationship include but is not limited to:

  1. The copy of the marriage certificate
  2. Photos of the marriage, with family and friends in attendance
  3. Affidavits from friends and family attesting to knowledge about the marriage
  4. birth certificates of the children born within your union or your spouse’s adoption of your child.
  5. Proof of travel
  6. Affidavits detailing how you met
  7. Photos of the ongoing relationship before and after the wedding
  8. Any proof of cohabitation at any point in the relationship
  9. Proof of co-owned property
  10. Less conventional but creative evidence. If all else fails, show the tattoo of the name of your significant other.

After the USCIS approves the I-130 petition, the application is forwarded to the National Visa Center (within 6 weeks) for processing. The petitioner will need to provide the Affidavit of Support and other requested evidence. A fee is usually required for the processing of the Affidavit of Support. Be sure to follow specific instructions or the application will be delayed at this stage. Also be sure to pay attention to any deadlines.

Once the National Visa Center receives the requested documentation, they forward it to the embassy where the final interview and consular processing will take place. You will receive instructions to complete online forms which the embassy will process. The National Visa Center will also inform you of the interview date.

Once you have an interview date, it’s usually a mad rush to get the medical exam done, to gather original documents such as birth certificates, marriage and divorce records etc. It is very important to follow the specific instructions in the interview letter and interview checklist. Failure to follow each instruction or provide specific documents will lead to a delay in the process of the immigrant visa. Hopefully you will prepare for the final interview, attend and then be approved.

After an approval, the officer will take your passport to embed the immigrant visa. You will receive the passport visa courier within 1 to 2 weeks with a sealed envelop to take with you to the port of entry in the United States. At this point, you will also be required to pay an additional immigrant visa fee. The immigrant visa fee allows the USCIS to process your newly minted Permanent Resident card (which you’ll receive in the mail).

The processing times differ depending on which immigrant visa category you fall under.

What is the difference between adjustment of status and the immigrant visa?

When you sponsor a relative and apply for adjustment of status, the relative has to be present in the United States. Be weary of this process because the relative must have a current priority date and legal status in the United States to qualify for adjustment of status. Only the immediate relatives of U.S. citizens can apply for an adjustment of status, even without legal status such as a current and valid visitor’s visa.

On the other hand, when you sponsor a relative who lives abroad, you are applying for them to receive an immigrant visa at the U.S. embassy in their home country to obtain their greencard upon entry into the U.S.

How long does it take to process an adjust status and an immigrant visa ?

If you sponsor an immediate relative (spouse, parent, child) and you are a U.S. citizen, the adjustment of status or immigrant visa will take approximately 1 year to 2 years. It depends on current processing times, and how quickly you respond to request for documents or more information. If you are not the immediate relative of a U.S. citizen, then it takes much longer to be assigned a current visa number. The processing time depends on the priority date. The USCIS provides a date on the initial receipt notice. This is your priority date. If the USCIS lists your priority date on the current processing times, it is likely your priority date is about to become current. Unfortunately, this takes years of waiting for everyone who is not an immediate relative of a U.S. citizen. Therefore spouses of U.S. citizens are immediate relatives but spouses of permanent residents will not be immediate relatives.

What is the cost to file an adjustment of status and an I-130 petition?

The filing fees are on the USCIS website under the Forms menu.

What are the reasons for a denial in a marriage based permanent residence?

A number of factors can lead to a denial. The most common being:

  • failure to show evidence of a bonafide marriage
  • failure to submit an acceptable Affidavit of Support
  • One or more grounds of inadmissibility
  • failure to respond to requests for more evidence within the deadline

Can my spouse sponsor my child even though the child is not related biologically?

Short answer is yes. Your spouse can sponsor their step-child. However, it is important to determine which category the stepchild will fall into. For example, if the child is under 21 years and you and your spouse were married before the step-child turned 18, that child would be considered an immediate relative. If the child is over 21 and even married, the U.S. citizen may still be able to sponsor the stepchild. But the U.S. citizen’s stepchild would not longer be an immediate relative. On the other hand, an Legal Permanent Resident (LPR) are subject to different rules. A stepchild would not fall within an immediate relative category and the LPR would not be able to sponsor the stepchild unless they are under 21 years or over 21 years and unmarried. I found a great article that discussed this, which was written by an officer at the Jamaican embassy. See article.

My U.S. citizen or LPR spouse is living with me abroad, can they still sponsor me?

Yes but only if they are domiciled in the United States. The exceptions to the domicile rule, which allows citizens or LPR’s to sponsor spouses abroad are:

  • U.S. citizens are employed by: U.S. research institutions and firms, U.S. companies involved in foreign trade, U.S. institutions related to foreign affairs or U.S. religious organizations.
  • LPRs who are employed by: U.S. research institutions and firms, U.S. companies involved in foreign trade, U.S. institutions related to foreign affairs or U.S. religious organizations; and who have an approved Form N-470, Application to Preserve Residence for Naturalization Purposes. This form essentially gives the LPR permission to work abroad without the risk of losing their permanent residence.
  • Both citizens and LPRs who show proof they plan to establish domicile before or after the foreign spouse’s arrival in the U.S.

Can my foreign spouse get work authorization and travel outside of the U.S. during the adjustment of status process?

Yes but you will need to include the I-765 work authorization application and the advanced parole form, I-131 in the adjustment of status application package to the USCIS. As of today, I-765 work authorization forms do not require a filing fee for those applying for adjustment of status as the spouse of U.S. citizens, but the advanced parole application requires a fee. Keep in mind that your foreign spouse should not travel without the approved advanced parole document. Otherwise they run the risk of not being able to re-enter the United States upon their return.

 

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