One of the quickest and most common ways for a foreign national, who is currently in the U.S. and who entered lawfully, to obtain lawful permanent resident status is through marriage to a U.S. Citizen, in a process called Adjustment of Status. As with much of Immigration Law, marriage-based adjustment of status can be quite complicated.
The process begins with U.S. Citizenship and Immigration form I-130, Petition for Alien Relative. The same petition can be used for a parent, child or sibling. The petition is necessary to establish the relationship between the U.S. Citizen and the relative, in this case, the foreign national spouse. In addition to form I-130, the U.S. Citizen and foreign national spouse must complete form I-130A which provides general biographical information. Immigration Law requires that the U.S. Citizen-petitioner prove that the marriage was valid at the time it was performed, that the marital relationship is bona fide (that is, actual and legitimate), and that it was not entered into solely for procuring an immigration benefit.
The immigration laws contain safeguards to prevent marriage fraud. The mere existence of a marriage certificate will not be enough to establish a bona fide marital relationship. A strong filing will also include items like signed affidavits from friends and relatives attesting to the authenticity of the relationship, love letters, holiday cards and photos. In cases where the foreign national is already in the United States, it may be expected that the couple live together. The United States Customs and Immigration Service (USCIS) will expect to see comingling of funds through joint bank accounts, joint tax filings, joint utility bills and joint leases or mortgages. The birth certificate of children born into the marriage will also be strong evidence of a bona fide relationship.
If the foreign national spouse of a U.S. Citizen is in the U.S. , under most circumstances , the couple can concurrently file the I-130 Petition for Alien Relative and the I-485 Adjustment of Status to the of a Lawful Permanent Resident. The U.S Citizen and his spouse generally need to file the following forms along with supplemental evidence:
- Form I-130
- Form I-130A
- Form I-485
- Form I-864, Affidavit of Support
- Form I-131 Application for Travel Document
- Form I-765 Application for Employment Authorization and
- I-693 Report of Medical Examination and Vaccination Record which can be obtained from a USCIS approved Civil Surgeon.
Upon receipt of these documents, USCIS will issue a receipt notice, followed by an ACS appointment notice in order to collect biometrics for the foreign national. The biometrics will be used to conduct a background check on the foreign national before any work authorization or adjustment of status can be granted.
The final step of the marriage-based adjustment of status application is the adjustment of status interview. At this interview a USCIS Officer will interview the couple, go over any questions or concerns regarding the application packet and determine whether or not the couple’s marriage is bona fide. If the officer believes that the foreign national is admissible and that the marriage is bona fide the officer may grant the adjustment of status application right there by stamping the foreign national’s valid passport with an I-551 stamp indicating that they are a lawful permanent resident, or more commonly, the officer will decide at a later date (usually within 30 days), and the I-551 Lawful Permanent Resident Card or “green card” will be sent to the foreign national by mail.
If the couple has been married for less than two years, the Lawful Permanent Resident Card will be a two year conditional card. The foreign national must again prove that the marriage was bona fide after two years by filing form I-751 with proof that the marriage was bona fide within 90 days of the card’s expiration. If the couple has been married for more than two years prior to the adjustment of status, the foreign national will be issued a Lawful Permanent Resident Card without conditions. The card itself will need to be renewed every 10 years, but the foreign national will be eligible to apply for U.S. Citizenship in three years if they remain married.