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About marriage-based adjustment of status

marriage green card page

Marriage Greencards (adjustment of status)

Certain foreign nationals who are physically present in the U.S. may be able to complete the marriage-based immigration process without leaving the country. This process is referred to as adjustment of status (i.e., adjusting to status as lawful permanent resident). For those who qualify, adjustment is typically speedier than consular processing, and avoids separation of the couple.

The paperwork for adjustment of status is completed in a single stage, and is thus commonly referred to by immigration practitioners as a one-step. As with consular processing, as described above, the U.S. spouse files an I-130 Petition as the “invitation” to the foreign spouse. But unlike consular processing the foreign spouse is not required to wait for approval of the I-130 petition. Instead, the foreign spouse concurrently files a Form I-485 Application to Adjust status, and the two submissions are adjudicated simultaneously. The Form I-864 financial support contract is also currently filed with the application packet.

As with consular processing, a central USCIS facility reviews the submission for documentary completion and will issue a Request for Evidence if needed. Once the file is complete, the case will be forwarded the USCIS field office having jurisdiction over the applicant. USCIS field offices are located in most major cities throughout the United States.

The time between initial filing and interview has ebbed and flowed, and also varies between USCIS field offices due to interview backlogs. At the time of writing in the author’s jurisdiction of Seattle, Washington, interviews could be expected approximately six to eight months from filing.

What gets filed in an adjustment of status case?

While the application is pending, may the foreign spouse work?

In some scenarios the spouse may already be in the United States with a status that authorizes work. But if not, the spouse must apply for work authorization concurrently with the adjustment of status application. In such cases work authorization should be issued within three months of filing.

The marriage interview

Both the U.S. citizen petitioner and the foreign spouse applicant are required to appear in person at the USCIS field office for interview. Unlike consular visa interviews, the parties have a statutory right to counsel at the interview. Also in contrast to consular processing, field office interviews are lengthy, detailed affairs. The couple will be seated at a desk across from a USCIS adjudicator for an interview that routinely lasts one hour or more. If the interviewer suspects fraudulent intent she may interview the couple separately. In such cases the interviewer will document each individual’s response to a preset list of questions designed to probe knowledge about the marital relationship.

Adjustment of status vs. visa application

Why would a couple ever use consular processing if adjustment of status allows them to remain together during processing? The issue lies with how the foreign national spouse will enter the United States. Under the immigrant intent doctrine, an individual entering the United States on a temporary visa generally may not harbor the intention to remain permanently in the United States. Indeed, immigration law presumes that a visa applicant intends to reside permanently in the United States, and the burden rests on the visa applicant to prove otherwise. In order to enter the United States on a temporary visa, such as a visitor’s visa, the foreign spouse would need to misrepresent her intentions both to the consular officer and, likely, to the Customs and Border Protection officer at the time of entry. By securing entry to the U.S. by fraud, the individual becomes permanently barred from reentry and from adjusting status. For this reason it is extraordinarily misguided for an individual to enter the U.S. on most temporary visas with the intention to marry a U.S. spouse and seek adjustment. By contrast, if the intention to marry and seek adjustment is formed only after entry – as when the U.S. spouse proposes after the foreign national has entered the country – it may be possible to seek adjustment.

How does Sound Immigration help?

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All Sound Immigration attorneys are members of the American Immigration Lawyers Associations. They practice immigration law exclusively, focusing on helping families start new lives in the United States.

This Post Has 17 Comments

  1. Hi! I have a question. My mother in law is currently on TPS. She has a USC son that is 21. I know she can adjust here, they both live in the 6th circuit plus she has traveled with travel docs on her TPS status. She first came in the US illegally in 1996, left the country 12/2000 then came back in illegally 03/2001 in which she was caught fingerprinted and sent back the same day. Then she came back in the US the next day illegally. Can she still file or does she have a 212a9c issue?

  2. Hi,

    I’ve misplaced my I-797 that gave me a 6 months extension on top of my year long extension which expires in mid Dec. My new employer requires another official copy once that one expires and since processing times for I-824 is 2-6 months, I was wondering what are the chances of getting an extension stamped onto my passport or on my Green card? I’ve read it’s a possibility and that the local USCIS will only do that one month before the notice expires?

    Thanks for your help. Your comment sections has been very useful and is a great resource.

    1. It never hurts to ask. Normally we tell our own clients to go in that 30-day window. But I would try if in your shoes. Their electronic record should show the extension letter was sent. It’s very standard.

  3. Hello

    I have a question a attorney I talked with said she does not send pictures or nomad idea in advance just the basic forms and marriage certificate , birth certificates. She said I am suppose to bring all that to the interview and not with the packet. So I’m kind of confused what is right and what is wrong.

    1. Terrible advice. Under the new policy failure to submit minimal evidence can result in immediate denial of your case. You can submit additional documents at the interview but at least some evidence of the marriage is crucial.

  4. In applying for a green card both forms I-130a and I-485 requires parents information to be listed, if fathers name is not on the birth certificate but is known can it be listed or should it be listed as unknown.Thanks

  5. Why many fields are not editable on USCIS forms ? and how to handle such cases ? (form i-130, i-485, i-864 (Part 6. 20)).

    Thanks for all your help and time.

    1. Hi, Ricky. You are probably using something other than Adobe Reader. Due to security features, other software does not always work properly. Download the free Adobe Reader application and try again.

  6. Is the $2500 fee you charge for handling a marriage based AoS just the lawyers fee, or does that also include the cost of submitting the paperwork, doctor’s visit, etc.?

    1. Hi, Kegan. That’s correct – our legal fees do not include costs imposed by third parties, such as immigration filing fees. This is the standard approach for almost all immigration firms.

  7. Hi,

    I’m married to a US Citizen and we filed for AOS in August 2017 and are still waiting for an interview to be scheduled. I travelled earlier this year with advance parole but I lost my combo card while abroad. My husband spoke to our USCIS field office and they said a replacement could not be issued if I am not present and the local US embassy cannot provide me with a transportation letter because I am not a green card holder. What are we supposed to do in this situation?

  8. Hello! Thank you so much for all the information!! I’m married to an American citizen. I’m almost done filling the forms but I have a doubt in the questions 16-17 from the I-485 form…
    “Have you ever worked in the US without authorization” and “Have you ever violated the terms of your immigrant status? I have worked as a babysitter all these years I’ve been undocumented and always got paid in cash, but I’m afraid answering yes to those questions can affect/deny my application inmediately. It also says to provide explanation for this. How do I approach this in the safest way?
    Thank you so much again in advance!

  9. I filed my I-751 on June 28, 2017. My one-year extension expires on August 24, 2018. I need to show green card to my employer, but I am still waiting for approval of my I-751. Can I make an appointment and go to the USCIS office to ask for a stamp on my passport now or should I wait until August to do that? I know my one-year extension will not expire until August, but I start to worry since it is only three months away. Thank you.

    1. Mary, the easiest option in these situations is often this alternative.

      You remain in LPR status as long as the I-751 is being reviewed. For our clients, we simply give HR a copy of the I-751 extension letter, along with showing (via the USCIS online case status indicator) that the I-751 is still under review. This demonstrates that the person remains in status. So far HR has always been willing to accept this approach. Otherwise you can take a swing at the I-751 extension stamp.

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