When permanent residence, or the “green card” is acquired in the United States, the process is called Adjustment of Status. When it is acquired outside of the United States, in a consulate or embassy, the process is called “Consular Processing.” I’ll be talking about Adjustment of Status today.
As with most immigration processes, there is a good deal of paperwork involved. It’s important to get it right; if forms are filled out incorrectly, or necessary documentation is not included, USCIS can reject the packet, or worse. An example of worse: I once had to
help new clients find out what was going on with their case, which had major delays; it turned out that they had incorrectly entered the Alien number on the forms, and this derailed the process. Luckily, we were able to correct that and the non-citizen spouse got
her green card.
To be eligible to adjust status, generally speaking, one must have been inspected and admitted to the U.S. — that is, must have entered with a visa. There are some exceptions, both ways: for example, someone with a crewman’s visa is not eligible to adjust, and someone who entered without inspection but who has 245(i) protection can. As always, you should speak to an immigration attorney about the specifics of your case!
Other eligibility issues are any criminal arrest or involvement of the noncitizen beneficiary, and now, with the passage of the Adam Walsh Child Protection and Safety Act of 2006, certain offenses of the petitioner, which can render the U.S. Citizen ineligible to petition.
Finally, if the noncitizen beneficiary has engaged in immigration fraud, or has any other ineligibility issues, he or she should consult with an attorney, as there are waivers available in certain cases.
Forms used in a spousal petition are:
- I-130, Petition for Alien Relative;
- I-485, Application to Register Permanent Residence or to Adjust Status;
- I-864 , Affidavit of Support (and another, if a co-sponsor is needed)
- I-765, Application for Employment Authorization (or “EAD”);
- I-693, Medical Examination; and
- G-325, Biographical Information for both husband and wife.
If the noncitizen is eligible, he or she may also apply for a travel document on form I-131.
- Proof of citizenship of U.S. Citizen spouse;
- Proof of eligibility of alien spouse (passport, proof of inspection and admission);
- Proof of marriage (and proof of eligibility to marry, if either spouse has been married in the past);
- Passport-style photographs of petitioner (2) and beneficiary (4)*; and
- Proof that the U.S. Citizen spouse can support the beneficiary financially.
In most cases, applications are sent with fees (the sooner the better!) to the Chicago lock box, which forwards the packet to the National Benefits Center in Missouri.
USCIS sends receipts, then schedules fingerprints. Shortly thereafter, EADs are sent out, then, depending on the backlog at your local USCIS office, the next step is to wait for the interview (in Boston, this can be as short as three months) where the couple will have to prove that the marriage is a good faith one.
Finally, if the couple has been married less than two years by the date of approval of the petition for permanent residence, the green card will be a conditional one, granted for two years. That is, the new green card holder will have to file jointly with the U.S. Citizen spouse to have the condition removed within the 90 days prior to expiration, and will have to prove again that the marriage was a good faith one.
* 5, if applying for a travel document