When Adjustment of Status Is Possible for the Immigrant Spouse of a U.S. Citizen

An immigrant who has married a U.S. citizen becomes what U.S. Citizenship and Immigration Services (USCIS) calls an "immediate relative." There are no limits on the number of immediate relatives who are allowed to apply for permanent residence (a green card) each year. Unlike with "preference relatives," the only waiting period faced by immediate relatives is the time it takes for the paperwork to be processed by the U.S. government.

But this is where things can get complicated, particularly for a would-be immigrant currently in the United States. They cannot necessarily count on being allowed to apply for a green card from within the U.S., through the process known as "adjustment of status" (8 U.S.C. § 1255.) Instead, the immigrant might have to leave the U.S. and apply for an immigrant visa and green card overseas, through what's called "consular processing."

As discussed in this article, there are many benefits to staying in the U.S. during the entire green card application process. But whether someone can adjust status depends, in most cases, on whether they entered the United States legally or illegally. We'll specifically look at:

• the advantages to adjusting status
• why a legal U.S. entry is required for the immigrant to adjust status and what constitutes a legal entry
• rare exceptions to the legal-entry requirement
• in brief, how the adjustment of status process works, and
• when someone might choose consular processing regardless.

Advantages to Adjusting Status Rather Than Consular Processing When Seeking a Marriage-Based Green Card

With adjustment of status, every step of the process is carried out in the United States. That means the couple won't be separated at any point (such as with the would-be immigrant having to interact with a U.S. consulate overseas. The would-be immigrant will qualify for a work permit (employment authorization document or EAD) after sending the adjustment application packet to USCIS. (Exactly when the immigrant will actually receive the work permit, however, depends on USCIS delays; it can take months.)

The U.S. spouse will attend the immigrant's adjustment of status interview at a USCIS office (assuming an interview is held; they're sometimes waived), and thus can provide moral support and be on hand to answer questions about issues like capacity as a financial sponsor.

And, the couple can bring an attorney along to the adjustment of status interview, which is especially useful if there are any complications in the case that might give rise to extra questioning, such as a criminal conviction.

How Immigrant Spouse's Mode of Entry Affects Eligibility to Adjust Status Based on Marriage to U.S. Citizen

An immigrant who 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), is said to have entered the country legally. That's an important factor for spouses of U.S. citizens. With a legal entry, it doesn't even matter if they stayed beyond the expiration date indicated for their U.S. stay (normally shown on Form I-94, issued by Customs and Border Protection or CBP).

The usual ways in which people enter the U.S. legally are:

• with a visa (a B-2 visitor or tourist, F-1 student, or H-1B temporary worker visa, for example)
• with a border crossing card (a special pass allowing regular entries), or
• 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).

After submitting the adjustment application, the immigrant's road to a green card should be reasonably smooth; they should (if desired) be able to stay in the U.S. for the entire application process. This will likely take a year or so, depending on backlogs at the local USCIS office.

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, is taking a big risk. They could face accusations of visa fraud upon applying to adjust status. Particularly if the immigrant knew the U.S. spouse before arriving in the U.S. 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 ask whether the immigrant's real intention upon arrival was to apply for permanent residence after the marriage. Unless the immigrant entered on a K-1 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 issue will not come up. And even for other couples, uncertainties about their marriage plans as well as the length of time they waited to get married can potentially satisfy USCIS that they didn't misuse an entry visa.

Immigrants Who Entered the U.S. on the Visa Waiver Program Can Often Adjust Status Based on Marriage to a U.S. Citizen

People who enter the U.S. on the Visa Waiver Program (VWP) are in most cases prohibited from adjusting status, but this doesn't apply to immediate relatives such as spouses of U.S. citizens. They can apply, even if they've overstayed the period of time they were allowed under the VWP.

The problem for spouses who entered under the VWP and overstayed is that they are subject to deportation at any time. If the spouse has been caught by U.S. Immigration and Customs Enforcement (ICE), USCIS retains the ability to grant an adjustment application, but must do so before the immigration judge enters a removal (deportation) order against the spouse. If you find yourself in that situation, you might need to ask the judge to postpone your removal proceedings long enough to get your green card from USCIS.

USCIS has the power to allow or refuse adjustment of status to anyone. If the spouse who entered on the VWP applies to adjust status, USCIS will usually go ahead and decide whether to give the spouse a green card, but it won't if an immigration judge has already entered a removal order or there are certain public safety concerns about letting the spouse adjust.

If USCIS denies the adjustment of status application of a spouse who has overstayed the VWP period, the spouse will be removed and won't be able to get before an immigration judge to try to stop the removal. (Although in certain states, you do have the right to see an immigration judge in that situation if you filed your adjustment application while you were still in the U.S. legally.)

If you entered on the VWP and wish to adjust status, it's best to consult with an experienced immigration attorney.

Immigrants Who Entered the U.S. Illegally (Without Inspection) Won't Likely Be Able to Adjust Status

An immigrant who entered the U.S. without having been seen and "inspected" by an officer of Customs and Border Protection (CBP), for example by crossing the border in secret, loses certain important procedural rights. This includes the ability to adjust status, whether based on marriage or any other grounds.

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 is likely, however, to refuse the visa because the immigrant is inadmissible for unlawful presence (and possibly on other grounds), 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, you can be proactive and apply for this waiver on a provisional basis, using USCIS Form I-601A, before leaving the United States. See 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.

Rare Ways Some Immigrants Can Adjust Status After Illegal Entry

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.

This is a complicated part of the immigration laws, and hardly applies to anyone anymore. It's best to get a lawyer to fully analyze whether you might qualify to use the adjustment of status procedure under this provision.

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 they want to help the foreign-born person immigrate. After USCIS approves this petition, the immigrant normally submits an application for permanent residence (a green card).

For the spouse of a U.S. citizen who is eligible to adjust status, however, 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."

Some time after they are mailed to an office of USCIS, it will call the immigrant in for biometrics (fingerprinting and a photograph). After that, USCIS will likely 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 of the marriage. If the interview goes badly, the couple might be separated, and undergo a fraud or "Stokes" interview.

If all goes well, the green card (lawful permanent residence) should be approved at or shortly after that interview. The actual card will arrive by mail some weeks later.

Immigrants Who Are Eligible to Adjust Status Based on Marriage Can Nevertheless Choose Consular Processing

Immigrants who entered legally are not required to choose the adjustment of status procedure. They might instead decide to leave the United States and apply for an immigrant visa at an overseas U.S. consulate. (The immigrant visa will basically turn into a green card when the person comes back to the United States.) Some people choose the consular processing option if the embassy or consulate serving their country happens to be moving more quickly than their local USCIS office.

However, immigrants should absolutely not choose consular processing if, since the time their permitted stay ran out, they have 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.

Getting Legal Help

An experienced attorney will have plenty of experience handling marriage-based cases, and can assist evaluating eligibility and strategy, preparing paperwork, and more.