Updated: Jan 20
The process used to apply for lawful permanent resident status (also known as applying for a Green Card) when you are present in the United States is known as Adjustment of Status. This means that if you qualify, you may get a Green Card without having to return to your home country to complete visa processing. If you are filing an Adjustment of Status application on the basis of marriage to a U.S. citizen or Lawful Permanent Resident you should consider these 5 things:
1. The Marriage Must Be In Good Faith
One of the most important things that you must prove to USCIS is that your marriage was entered in good faith. You will have to submit sufficient documents and proof that your marriage is really a good faith or “bona fide” marriage. USCIS officers who adjudicate marriage-based cases are always on alert for discrepancies that may indicate the illegal act of marriage fraud—marriage solely for the purpose of obtaining a U.S. green card. The U.S. government takes marriage fraud extremely seriously, and parties who violate the law may be subject to heavy fines, imprisonment, and long-term immigration consequences for the non-citizen.
If USCIS determines that the marriage was entered into only for purpose of gaining immigration benefits, they will deny the application. Denial of the application may result in the initiation of deportation or removal proceedings.
2. There Are Plenty of Reasons for Denial of Adjustment of Status
The reasons for denial of adjustment of status are not limited to lack of evidence that the marriage is bona fide. Reasons for denial may include a person’s health, criminal background, immigration history, and whether a person entered with a preconceived intent to marry and remain in the U.S..
Filling out several immigration applications is only a part of the process. The information you place in the forms can have a huge impact on the outcome of your case. You should understand how the information you will provide to immigration officers will affect your case before filing. Additionally, the supporting documents (evidence) is equally as important to the outcome of your case. An under-supported case will likely not be approved, and not all evidence is relevant or favorable.
3. You Cannot Leave the U.S. Immediately After Filing
After you have married and filed for adjustment of status you will not be able to leave the U.S. until you apply for and receive Advance Parole or your Green Card.
If you leave the country before receiving one of these two documents, you may not be allowed to re-enter the U.S. and your adjustment of status application can be deemed ‘abandoned’ and denied. You and your spouse would have to start the immigration process from scratch and your spouse may have to wait outside the U.S. to consular process your green card.
4. Petitioner Must Commit to Financially Support the Non-citizen Spouse Even After Divorce
The U.S. citizen or Lawful Permanent Resident petitioning spouse must contractually agree to financially support his/her spouse by filing Form, I-864, Affidavit to Support, and provide proof that he/she earns at least 125% above the poverty guidelines depending on his/her household size, in order to prove that the immigrating spouse will not become a “public charge” to the U.S. government. The U.S. Citizenship and Immigration Service (USCIS) provides a chart on its website listing the income requirements for Form I-864. In cases where a petitioner does not meet the minimum income requirement, the petitioner may use assets, add the income of a member of the household by submitting Form I-864A, Contract Between Sponsor and Household Member, or add a Joint Sponsor to meet the income requirement. The Household Member or Joint Sponsor who completes and signs a Affidavit to Support Form will have the same financial obligation as the petitioning spouse.
Once sponsored, if Federal, state, or local public means-tested benefits are received by the sponsored immigrant, the agency providing the benefits may request that the sponsor repays the cost of those benefits.
A sponsor’s obligation to support the sponsored immigrant continues until the sponsored immigrant becomes a U.S. citizen, can be credited with 40 qualifying quarters of work in the U.S. (generally, 10 years), the sponsored immigrant loses or voluntarily gives up their permanent resident status, or dies. Notice that divorce does not terminate the sponsor’s financial obligation to support his/her spouse according to his contractual commitment as a result of filing Form I864, Affidavit to Support.
5. Conditional Residence (aka 2-year green card) Granted to Newlyweds
A person who has been married for less than two years before receiving legal permanent resident status will receive a green card valid for 2 years with the requirement to file a separate application, Form I-751, to “remove conditions” within 90 days before the green cards’ expiration date.
Not all I-751 applicants must attend an interview, but some will. If the officer is completely satisfied with the application and evidence as submitted, the officer may approve without an interview. This is why providing sufficient evidence to support your I-751 application is so important.
If you are required to attend an interview you will receive an Interview Appointment Notice with the date, time, and location of your interview. You must attend your interview.
Currently, processing times for I-751 applications generally range from 18-24 months.
If your I-751 is approved, you would have successfully removed the conditions from your residence, and you will receive a 10-year green card.
If your I-751 application is denied, USCIS will have terminated your residence status and you will likely be placed in deportation proceedings. If you receive a denial notice it is important that you see an immigration attorney immediately. After a denial, you may refile your application with improved supporting documents before being placed in removal proceedings, or your attorney may help you request that an immigration judge review the denied I-751 to issue a different decision, or determine a different case strategy while you are in deportation proceedings.
To contact our firm about a Marriage Green card and case strategy call us at 321-325-1125.