An immigrant who is married to a U.S. citizen becomes what is called an “immediate relative” in USCIS terminology. There are no limits on the number of immediate relatives who are allowed to apply for permanent residence (a green card) each year. The only waiting period is the time it takes for the paperwork to be processed by the U.S. government. But this is where things can get complicated.
Even if the immigrant is currently in the United States, he or she cannot count on being able to apply from within the U.S., through the process known as "adjustment of status." Instead, the immigrant may have to leave the U.S. and apply for the green card overseas, through what's called "consular processing."
There are many benefits to staying in the U.S. during the entire green card application process. With adjustment of status, the couple won't be separated, and the immigrant will receive a work permit once the application is pending at USCIS. The U.S. spouse, who must attend the interview, can provide moral support, and be on hand to answer any questions about his or her capacity as a financial sponsor. And, the couple can bring an attorney along; especially useful if there are any complications in the case, such as a criminal conviction.
The key to whether someone can adjust status is, in most cases, whether he or she entered the United States legally or illegally.
How the Immigrant's Mode of Entry Affects Eligibility to Adjust Status
If the immigrant entered the U.S. with permission, such as with a visa (and with the intent to stay temporarily, not to misuse the visa by applying for a green card), he or she entered the country legally. That’s true even if the person stayed beyond the visa expiration date. The road to a green card should be reasonably smooth; the immigrant should (if he or she wants to) be able to stay in the U.S. for your entire application process, which will likely take about a year. The usual ways people enter legally are:
• with a visa (a tourist, student, or temporary worker visa, for example)
• with a border crossing card (a special pass allowing regular entries)
• under the Visa Waiver Program (where citizens of certain countries are allowed to enter the U.S. as tourists by showing their passport, without first obtaining an entry visa).
Immigrants Who Entered the U.S. Legally With a Visa or Border Crossing Card
If the immigrant entered the U.S. legally and his or her spouse is a U.S. citizen, it's a powerful combination: The immigration should (unless he or she committed visa fraud, as discussed below) be able to apply for a green card using the procedure called adjustment of status, and not have to leave the U.S. during any part of the application processing.
An immigrant who entered legally is not required to choose the adjustment of status procedure, however. He or she might instead decide to leave the United States and apply for an immigrant visa/green card at an overseas U.S. consulate. Some people choose this option is the consulate serving their country happen to be moving more quickly than their local office of U.S. Citizenship and Immigration Services. However, the immigrant should NOT choose consular processing if, since the time that his or her permitted stay ran out, he or she has been living in the U.S. unlawfully. That could lead to a lengthy bar on reentry, as discussed in "Consequences of Unlawful Presence in the U.S.--Three- and Ten-Year Time Bars."
IMPORTANT WARNING: An immigrant who used a temporary form of entry to the U.S. -- such as a tourist visa or a visa waiver -- while planning all along to get married, might face accusations of visa fraud upon applying to adjust status. Particularly if the immigrant knew the U.S. spouse before arriving in the United States and used a temporary visa to enter, USCIS is likely to be suspicious. At the interview where the green card would normally be approved, USCIS might raise question about whether the immigrant's real intention upon arrival was to apply for permanent residence after the marriage. Unless the immigrant entered on a fiancé visa, the discovery that this was the real intention will lead USCIS to demand filing an additional application requesting a waiver or forgiveness of visa fraud. Of course, if the couple met after the immigrant arrived in the United States, this will not be a problem. And even for other couples, uncertainties about their marriage plans as well as the length of time they waited to get married often satisfy USCIS that they didn’t misuse an entry visa.
Immigrants Who Entered the U.S. Legally on the Visa Waiver Program
Many immigrants have been allowed to apply for adjustment of status in the U.S. after entry on the Visa Waiver Program (VWP) -- but not all. USCIS policy and court interpretations vary across the United States. This is based on the underlying premise that VWP entrants are never allowed to change or adjust their status. In some jurisdictions, you can apply for adjustment only if still within the original 90-day period of your VWP entry. Because this is geographically specific, and may change at any time, your best bet if you entered on the VWP and wish to adjust status is to consult with an experienced immigration attorney.
Immigrants Who Entered the U.S. Illegally (Without Inspection)
Now, what if the immigrant entered without having been inspected by an officer of Customs and Border Protection (CBP), for example by crossing the border in secret? In that case, he or she loses certain important procedural rights, namely to adjust status (apply for a green card without leaving the United States).
The immigrant will likely have no choice but to leave the United States and apply for an immigrant visa and green card at a U.S. consulate abroad. The consulate could refuse the visa because the immigrant is inadmissible, depending on how long the immigrant lived in the United States after the illegal entry. A waiver is available to applicants who can prove that denial of the immigrant visa would cause extreme hardship to a qualifying U.S. relative. Fortunately, as the immediate relative of a U.S. citizen, you can be proactive and apply for this waiver on a provisional basis, using Form I-601a, before leaving the United States. (Other applicants will have to leave the U.S. before applying for the waiver.) See Nolo’s articles on ”Who Is Eligible for Provisional Waiver of Three- or Ten-Year Time Bar” and ”How to Apply for Provisional Waiver of Three- or Ten-Year Time Bar” for details.
Other Ways Some Immigrants Are Eligible to Adjust Status
Regardless of mode of entry, some immigrants are lucky enough to be eligible for adjustment of status if they started a green card application process before a certain part of the law called "Section 245(i)" changed. Specifically, a green-card eligible immigrant can apply to adjust status if a prospective employer or relative filed either a labor certification or a visa petition on the person's behalf either:
- before January 14, 1998, or
- between January 14, 1998 and April 30, 2001 if the applicant can prove that he or she was physically present in the U.S. on December 21, 2000.
How the Adjustment of Status Process Works
Getting a marriage-based green card is normally a two-step process. First, the U.S. spouse submits a petition (Form I-130) telling USCIS that he or she wants to help the person immigrate. After USCIS approves this petition, the immigrant submits an application for permanent residence (a green card).
But for the spouse of a U.S. citizen who is eligible to adjust status, the process usually gets condensed into one step. The U.S. spouse’s petition and the immigrant's green card application can be filed together, or "concurrently." They should be mailed to an office of USCIS. Months later, USCIS will call the immigrant in for biometrics (fingerprinting and a photograph). After that, USCIS will call the couple in for a personal interview. A USCIS officer will ask various questions concerning the immigrant's eligibility for the green card and the validity and bona fides of the marriage.
The green card (lawful permanent residence) should be approved at that interview. The actual card will arrive by mail some weeks later.