Foreign Nationals Seeking to Adjust Status Based on Their Marriage to a
United States Citizen
You, the Foreign National, are in the United States on a non-immigrant visa. Throughout your temporary stay here, the unexpected happens. You meet a person who sweeps you off your feet. All of the sudden, you can no longer picture your life without this person. As time continues on, you and this individual are married to one another. However, a problem presents itself. In the midst of your newfound relationship, you realize your non-immigrant visa is due to expire, and you fear being separated from your U.S. citizen spouse. Fortunately for you, United States Citizenship and Immigration Services (USCIS), has a sense of compassion for individuals who find themselves in situations such as yours. To ensure family unity, and stability, USCIS has made Adjustment of Status within the U.S., a viable option for non-immigrants who marry U.S. citizens, to transition to lawful permanent residence based on their marriage; so long as USCIS is satisfied that the marriage is “bona fide.”
Addressed below, is the basic process that has been established to permit non-immigrant Foreign Nationals who marry U.S. citizens to remain in the U.S. as lawful permanent residents.
What is Adjustment of Status?
Adjustment of Status is a process utilized by Foreign Nationals who are admitted to the United States as non-immigrants, in order to become lawful permanent residents in the U.S. Immigration and Nationality Act, § 245. It is in the discretion of the attorney general of the U.S. to allow a Foreign National to adjust status. Id at § 245(a). To do so, the Foreign National must apply to adjust status via USCIS Form I-485, Application to Adjust Status; the Foreign National must be eligible to adjust status, and there must not be a bar to the Foreign National’s admissibility to the U.S. for permanent residence; and lastly, there must be an immigrant visa readily available for the Foreign National at the same time that the application to adjust status is filed. Id at § 245(a)(1)-(3).
In its desire to further promote family unity, USCIS allows U.S. citizens to petition for certain relatives to permanently live in the U.S. Spouses, unmarried children of U.S. citizens under the age of 21, and the parent(s) of a U.S. citizen who is over the age of 21, are eligible to adjust status. Two options are available for the Foreign National if they are in the U.S. to adjust status. The Foreign National may either adjust status by utilization of “One-Step” processing (also referred to as concurrent filing) or “Two-Step” processing. (See www.uscis.gov). Due to the efficiency and convenience, One-Step processing is the preferable method for Foreign Nationals already present in the U.S. in non-immigrant status, to adjust status and become permanent residents in the U.S.
How Does a Foreign National Adjust Status While in the U.S.?
One-step processing culminates into a convenient and efficient method for those admitted as non-immigrants, who marry U.S. citizens and are present in the U.S., to become lawful permanent residents. One-step processing entails simultaneously filing an I-485, Application to Adjust Status, and I-130, Petition for Alien Relative. Because a Foreign National spouse of a U.S. citizen qualifies as an “immediate relative,” a visa number is immediately available, allowing for the utilization of One-step processing. A clear advantage to One-step processing, is the elimination of consular processing by means of the Department of State. (See www.uscis.gov).
Forms I-485, Application to Adjust Status & I-130, Petition for Alien Relative
Form I-485 is to be completed by the non-immigrant applicant seeking to adjust status. Certain initial supporting documentation must be submitted with the I-485. Such supporting documentation includes: documentation regarding the non-immigrants criminal history in the U.S., if applicable; birth certificate; copy of passport with non-immigrant visa; photos; biometric clearances; police clearances; medical exams; Form G-352A, Biographic Information Sheet; Affidavit of Support, Form I-864 and an employment letter by the relative sponsoring the non-immigrant for adjustment of status via the I-130; and lastly, a copy of the I-130 Petition for Alien Relative must be attached to the I-485, as proof of the non-immigrant’s eligibility to adjust status. (See Instructions for Form I-485).
Form I-130, Petition for Alien Relative, is to be completed by the U.S. citizen spouse, commonly referred to as the “petitioner.” Completion of the I-130 to be submitted with the I-485 application, requires submission of the following supporting documents by the petitioner: proof of U.S. Citizenship, which may be demonstrated through submission of a birth certificate, certificate of naturalization/naturalization certificate, a copy of the petitioner’s expired U.S. passport, etc.; a copy of your marriage license, in order to prove the family relationship, along with proof of termination of prior marriages, if applicable; Form G-325A biographic information sheet, to be completed by the Petitioner and spouse being sponsored; along with other evidence demonstrating the marriage is “bona fide,” (not a sham). (See Instructions to Form I-130).
Evidence demonstrating the marriage is bona fide, or “legitimate,” would include submission of the existence of joint ownership of property in both spouses names, a lease in the name of both spouses, proof that assets of the spouses have been co-mingled, birth certificates of biological children of the petitioner and his/her spouse, along with affidavits attesting to the bona fides of the marital relationship. Moreover, a petitioner is urged to submit any other documentation that would assist in demonstrating the bona fides of the marriage, such as mail in the name of the petitioner and the spouse, utility payments in the name of both spouses, and photographs of the petitioner and spouse together. (See Instructions to Form I-130).
Once the non-immigrant seeking to become a lawful permanent resident via his marriage to a U.S. citizen, and the petitioning U.S. citizen spouse, compile all of the documentary evidence to be simultaneously submitted with Forms I-485 and I-130, the applications will be sent together to the USCIS Chicago Lockbox. Upon receipt, the application will be checked to ensure it is complete. USCIS has the liberty of requesting more supporting information or evidence, or the originals of documents that it has received by the petitioner and Foreign National. Further, USCIS may request that the Foreign National and petitioner, make themselves available for an interview at the USCIS offices. Once USCIS comes to a decision, the Foreign National and petitioner will receive a written decision from USCIS. (See www.USCIS.gov).
Benefits of Adjustment of Status Through One-Step Processing
Adjustment of status from non-immigrant to immigrant status is beneficial for those non-immigrants present in the U.S. seeking to adjust status based on their marriage to U.S. citizens. Further, One-step processing, simplifies the adjustment of status process by eliminating consular processing through the Department of State. Additionally, USCIS helps expedite the adjustment of status process because it makes visas immediately available for those seeking to adjust status based on their qualifying as an “immediate relative” of a U.S. citizen, a category that a spouse clearly classifies under.
To determine whether Adjustment of Status based on your marriage to a U.S. citizen is a viable option for you, please contact our offices and schedule a consultation, so that we may assess the circumstances surrounding your possible transition from non-immigrant to immigrant status.
