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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.

Adjustment infographic

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.

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