Spouses of U.S. citizens are considered “immediate relatives” and are exempt from all numerical quota limitations. In other words, the foreign spouse is granted U.S. residency as soon as the paperwork is processed; there is no further waiting period. Marriage to a permanent resident may involve a waiting period of up to several years for the foreign spouse to become a resident.
If the U.S. citizen resides abroad, the immigration paperwork is filed with the appropriate U.S. Consulate.
If both the immigrant spouse and the U.S. citizen spouse are in the United States, the immigrant petition (also known as I-130 petition) and the adjustment of status application (also known as I-485 application) along with supporting documents are filed concurrently with the USCIS. This allows the immigrant spouse to continue to reside legally in the U.S. even if the underlying I-94 (a form issued at a port-of-entry to the U.S. with authorized stay information) expires immediately after filing. In other words, there is no requirement to extend the underlying nonimmigrant visa status (such as student, visitor, worker, etc.) once I-130 and I-485 are filed together.
The USCIS will issue employment authorization document and permission to travel outside the U.S. (“advance parole document”) to the foreign spouse within 60 to 90 days after filing. Examples of supporting documents that may take time to acquire and should therefore be secured in anticipation of the sponsorship based on marriage include birth certificate of the immigrant spouse (translated into english if applicable); birth certificate or other evidence of U.S. citizenship (such as copy of the first couple of pages of U.S. passport or copy of naturalization certificate) of the sponsoring spouse; divorce decree(s), if applicable.
The concurrent filing of the immigrant petition and adjustment of status application are permissible even if the immigrant spouse has stayed in the U.S. beyond the expiration date of his or her visa status. Overstaying by 180 days or more and then departing the U.S. can subject the violator to being barred from entering the U.S. again for 3 or 10 years, depending on length of violation of authorized stay. Thus, in most circumstances it is best not to depart the U.S. once significant violation of status has already occurred and the immigrant petition, adjustment of status application, and supporting documents have been filed and accepted by the USCIS.
After the sponsorship paperwork has been submitted, the USCIS will schedule the marriage interview (also known as adjustment of status interview), which may take place anywhere from three months to twelve months after filing, in order to determine whether the marriage is a bona fide marriage, that the sponsoring spouse has not received material benefit in exchange for marriage and sponsorship, that the married couple is not keeping their marriage a secret from friends and relatives, etc. Both spouses must attend the adjustment of status interview. Following a successful marriage interview, the foreign spouse is granted Conditional Permanent Resident status.
The USCIS does a second check on the marriage after two years because marriage is a relatively easy route to get permanent residency in the U.S. A conditional resident enjoys all of the privileges (to work, study, reside, etc.) in the U.S. as that of a lawful permanent resident (LPR) excepting that the conditional resident status is, as the name implies, of temporary duration. Conditional status is removed by submitting a joint petition (petition signed by both the U.S. citizen spouse and the conditional resident spouse) within 90 days of the two year anniversary of the granting of the conditional permanent resident status. The conditional resident card expiration date will be clearly printed on the card and is unlikely to be overlooked by either spouse. If the marriage has been terminated by reason of divorce, death of the citizen spouse or spousal abuse, the foreign-born spouse may apply for a waiver of the joint petition requirement.
Please contact our firm if you have any questions.
[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]
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