There are many forms which must be completed to obtain a green card on behalf of one’s spouse. Additionally, you must prove that your relationship is “bona fide,” that is, that the relationship is real and not just entered into for immigration purposes.
The term “adjustment of status” refers to a green card application that is submitted from within the United States. If your spouse is outside the U.S., he or she must “consular process” to obtain a green card or must enter with a fiancé/e visa and then adjust status here.
General information, such as that provided below, does not constitute individual legal advice nor is it meant to take the place of individualized legal advice; however, we do hope to answer some of the questions we hear most often. You should always consult with a qualified immigration attorney about the individual facts of your case before making any decisions about your particular situation.
Can I Adjust Status if I Married a U.S. Citizen?
It depends. The first important thing to understand is that your eligibility for a green card and your eligibility to adjust status are two different things.
Every immigrant who marries a U.S. citizen becomes an “immediate relative,” in immigration law terms, and theoretically eligible for a green card. But that doesn’t mean they’re eligible to get that green card by adjusting status, even if they’re in the United States.
As it happens, people who both entered the United States legally (on a valid visa, which they weren’t misusing for the purpose of getting a green card) and are married to a U.S. citizen are in most cases eligible to adjust status. People who entered illegally and married a U.S. citizen are (subject to some narrow exceptions) not eligible to adjust status.
Who Is Eligible to Adjust Status?
There are numerous requirements for being eligible for adjustment of status:
- You must be eligible for a U.S. green card (permanent or conditional residence), most likely through a close family member who is a U.S. citizen or permanent resident , an employer, or being an asylee or refugee.
- If your eligibility is based on employment or family, you must already have an approved visa petition on file, and your priority date must be current (if you have a priority date – this applies to immigrants in “preference categories” who must be on a waiting list before receiving their immigrant visa or green card). (Exceptions to the rule about having an approved petition on file apply, for immigrants in categories where the visa petition can be filed concurrently, or at the same time as the adjustment of status application.)
- If your eligibility is based on asylum or refugee status, you must have waited one year since either your asylum approval or your entry into the United States with refugee status.
- You must be in the United States.
- You must not have entered the U.S. as a foreign national crewman, in transit without a visa (“TWOV”), or under the Visa Waiver Program (VWP) (although entry on the VWP is okay if you are the immediate relative of a U.S. citizen).
- You must (with some exceptions) be in valid visa status, and not have stayed past the expiration date of your permitted stay or worked illegally.
- If you fit most of the criteria but aren’t eligible to adjust because of an illegal entry or other visa or status violation, you must fit within an old law called 245(i). This means you can adjust status, upon payment of a $1,000 penalty fee, if you were:
- the beneficiary of an immigrant visa or labor certification petition (including I-140, I-130, I-360, or I-526) that was filed on or before April 30, 2001, and
- if the petition was filed between January 14, 1998 and April 30, 2001, you can also prove that you were physically present in the U.S. on December 21, 2000.
What if I’m Eligible for a Green Card, But Not Eligible to Adjust Status?
If you aren’t eligible to adjust status, you may still be able to get a green card through consular processing. That should be no problem if you already live overseas. However, realize that if you’ve spent more than six months in the United States unlawfully, then you’re likely to face penalties at your visa interview requiring you to stay outside the U.S. for three or ten years, unless you qualify for a waiver.
This is definitely a topic to bring up with an immigration lawyer before you leave the U.S. for a consular interview — especially because some immediate relatives of U.S. citizens may be able to apply for a “provisional” or “stateside” waiver before leaving the U.S., which can avoid getting trapped outside for many years in cases where the waiver is denied.
What forms do I need to fill out in order to sponsor my spouse for a green card if we are both in the U.S.?
The U.S. citizen must complete the following forms
- I-130 petition for alien relative
- I-864 affidavit of support
- 125% of federal poverty guidelines for family size
- G-325A biographic information
The foreign national partner must file the following forms:
- I-485 adjustment of status
- I-693 civil surgeon examination
- G-325A biographic information
- While not required, the foreign national partner may also choose to file the following forms:
- I-765 employment authorization document application
- I-131 application for advanced parole (which allows travel outside the U.S. while the application is pending)
What do I have to show for the I-864 affidavit of support?
In order to demonstrate that the foreign national spouse will not become a public charge, the U.S. citizen spouse must prove that he or she has sufficient financial resources to support his or her spouse. You will have to provide evidence that your annual income is at least 125% of the Federal Poverty Guidelines for your household size. You will have to submit proof of your current employment as well as your most recent federal income tax return. If you do not earn enough money to sponsor your household size at 125% of the poverty level, you can supplement the affidavit with assets (for example if you own a home but live on a fixed income) or you can have a family member or friend file a joint affidavit of support. The joint sponsor must independently make enough money to support the foreign national and his or her own household at above 125% of the poverty level.
What does the I-693 civil surgeon examination require?
Anyone who applies for permanent resident status in the U.S. must establish that he or she is not inadmissible on public health grounds. USCIS requires foreign nationals to undergo a medical examination with a designated civil surgeon before submitting their adjustment of status application in order to confirm that he or she is not suffering from a “communicable disease of public health significance.” The results of the examination will remain valid for 12 months. You can find the nearest designated civil surgeons here. Note, the medical examination no longer includes a test for HIV, and being HIV positive is no longer an automatic ground of inadmissibility. That being said, the applicant’s overall health, including HIV status, can be taken into consideration by USCIS as it determines whether or not the applicant is likely to become a public charge.
What is the filing fee?
The total filing fee for a spousal petition and application to adjust status is currently $1490. USCIS increases fees often, so be sure to check the USCIS website for current fees and mailing addresses. This includes $420 for Form I-130 and $1070 for Form I-485. Note that there are additional filing fees for Forms I-765 and I-131, however those fees are waived if these forms are submitted concurrently with the I-485 application to adjust status.
What kind of evidence should we submit to prove that our relationship is real?
Copies of the following types of documents can be useful in proving that your marriage is real. This list is not exhaustive, and you don’t need to have every one of these items, but you should gather as many documents as you can that tend to show that your relationship is about more than pursuit of a green card.
- Photographs of your wedding ceremony and of your time spent together as a couple
- Wedding invitations, announcements, congratulation cards, etc.
- Proof of joint parentage or custody of a child(ren)
- Utility bills in both spouses’ names
- Leases, mortgages, or rental agreements in both spouses’ names
- Joint bank accounts, insurance policies, etc.
- Employer records showing that one spouse has listed the other as an emergency contact
- Evidence that one spouse has made the other a beneficiary of a will, insurance policy, retirement plan, etc.
- Medical powers of attorney or health care directives giving one spouse the authority to make medical decisions for the other
- Records of club, gym, or other memberships where both spouses are listed as members
- Letters, emails, cards, or records of other correspondence (phone, Skype, etc.) over the course of your relationship that document your frequent communication with one another
- Evidence of travel together, including trips to visit one another if the two of you have been living apart
- Letters of support from friends and family who know the two of you as a couple and who can attest to the bona fide nature of your relationship
What happens after filing?
USCIS will contact you to confirm that it has received your submission and will assign the foreign national partner an alien registration number, or “A number,” if he or she does not already have one. The foreign national partner will also receive an appointment notice to report to the nearest USCIS Application Support Center to have his or her biometrics taken. At this appointment, the applicant’s fingerprints and photograph will be taken, and he or she will be required to fill out a few identification forms.
Will I have to go to a USCIS office for an interview?
Yes. In almost all cases, USCIS requires an interview with the local office before approving a marriage-based adjustment of status application. At the interview, the USCIS officer may ask you questions about the documents that you’ve submitted and answers that you have provided on your immigration forms to double check their accuracy. You and your partner may also be questioned about the nature of your relationship, including how you met, details about your wedding, and questions about your daily married life together. If the officer has any reason to doubt that your marriage is real, you can be called back for a second interview at which the two of you are split up and asked more detailed questions about your life together (like, what color is your spouse’s toothbrush; how many air conditioners are in your apartment; what is your spouse’s favorite movie, etc.) After this interview, the green card can be approved or denied. If it is denied, the foreign national spouse could be placed into removal proceedings if the USCIS officer believes the application was fraudulent.
Can I work while my adjustment of status application is pending?
You can submit an I-765 application for an Employment Authorization Document (EAD) along with your application to adjust status. If approved, an EAD would allow you to legally work in the United States. If you’ve submitted an I-765 application and your adjustment of status application has been pending for more than 90 days, you will automatically be entitled to an EAD and can begin working. You will need to apply for a social security number in order to work lawfully.
Can I travel abroad while my adjustment of status application is pending?
Generally, you should not travel abroad while your application to adjust status is pending unless you’ve applied for and received an “Advance Parole” document. You can apply for Advance Parole by submitting Form I-131 along with your application to adjust status. Without Advance Parole, you may be denied reentry and/or your adjustment application may be deemed abandoned. Even with advance parole, there may be some risk in traveling if you have accrued unlawful presence in the United States or have other grounds of inadmissibility. You should consult with an attorney before traveling abroad.
What’s the difference between lawful permanent residence and conditional permanent residence?
If you’ve been married for fewer than two years before submitting a spousal petition, the foreign national spouse will receive “conditional” permanent resident status following approval of his or her application to adjust status. This status is valid for two years. Ninety (90) days before this status expires, the conditional permanent resident must file a petition to remove the conditional status and become a “lawful” permanent resident. In this petition, you will have to show that you are still married, and you may be asked to come into a USCIS office for an interview. If all goes well, you will receive a permanent green card after this second round of adjudication. If you and your spouse divorce before obtaining a permanent green card, it may still be possible to obtain the permanent green card but you must submit significant evidence about efforts you made to save your marriage (counseling from a therapist, clergy, family, etc.) in order to convince USCIS that your marriage was not solely for immigration purposes.
When can I become a U.S. citizen?
So long as the following requirements are satisfied, you should be eligible for U.S. citizenship through naturalization following three years of continuous residence in the U.S. as a permanent resident green-card holder. You must:
- Be at least 18 years old
- Remain married to your U.S. citizen partner
- Have been married and living with that same U.S. citizen partner for the past three years, and
- Your spouse must have been a U.S. citizen for the past three years
- If any of the above conditions are not met, then you will be eligible to apply for U.S. citizenship through naturalization following five years as a permanent resident.
- Note that any time spent as a “conditional permanent resident” counts toward the overall continuous residence requirements, so long as you applied to remove the condition when you became eligible to do so. Thus, if you spent two years as a conditional permanent resident, applied to remove the condition, you should be able to apply for naturalization following one year in lawful permanent resident status.