The following only discusses general issues relating to spousal adjustments of status. Adjustments of status are very complicated and can be risky. This post does not constitute legal advice. Each situation is different and requires a specific legal analysis. Contact CLA for assistance.
One common way for someone to get a green card is for their spouse to sponsor them. This is a complicated situation and requires a detailed evaluation of the specific situation. Contact CLA or another qualified immigration attorney before anyone files papers for you.
Can I get a green card through my spouse?
A U.S. Citizen or green card holder (Lawful Permanent Resident) can file for their foreign spouse to get a green card. This is called a spousal adjustment of status. A spousal adjustment f status is a two step process - your spouse petitions for you by filing a USCIS Form I-130 Family/Relative and you file your green card application. Sometimes these papers can all be filed at the same time but sometimes your spouse has to file their petition first and you have to wait to file your green card application. This is discussed further below.
Is the process different if my spouse is a green card holder and not a U.S. Citizen?
Yes. There are several very important differences depending on whether your spouse is a U.S. Citizen or a green card holder. If your spouse is a Citizen, you are considered an “immediate relative.” You and your spouse can file all of the papers at the same time with USCIS and you may not have to leave the U.S. during the adjustment process, including for the interview. Also, some issues will not disqualify you from getting a green card even though they can serious problems in other situations. For instance, if your spouse is a Citizen, it should not be a problem if you have overstayed or worked in the U.S. without authorization.
If your spouse is a green card holder, you are considered a “preference relative.” The process will take longer and has to be done in parts. You and your spouse can’t file all of the papers at the same time. Instead, your spouse first files their Family/Relative Petition. Once that is approved, you will have to wait until your priority date becomes current before you can move on to the next step of filing your green card application. The priority date is based on when the I-130 was filed. Currently, the wait is almost 2 years, although that could change. After your priority date comes up, then you can file your green card application. When your spouse is a green card holder, there are also more things that can impact your eligibility for a green card, including overtsaying in the U.S. In addition, you will usually have to interview for your green card in your home country.
Do I have to live in the U.S for my spouse to sponsor me?
You don’t have to be in the U.S. for your spouse to sponsor you. However, the process will be different than if you are in the U.S. If you are living outside the U.S., whether your spouse is a Citizen or a green card holder, the process takes place in two separate parts. First, your spouse files their Family/Relative Petition. Once that is approved, your case will be transferred to the U.S. Department of State for additional processing. They will contact you and let you know what additional forms and fees are required. Eventually, your case will be sent to your local U.S. Embassy or Consulate and you will be scheduled for an interview. If approved, you will be allowed to travel to the U.S. as a green card holder.
Can my spouse sponsor me if I crossed the border?
Crossing the border without being inspected by a U.S. Immigration Officer creates a serious problem for someone who is hoping to get a green card, even if they are married to a U.S. Citizen. There are some circumstances where you can ask for a waiver that will allow you to get a green card even if you crossed the border, but waivers are complicated and difficult to qualify for. Also, you will have to attend an interview back in your home country and cannot complete the adjustment process in the U.S. If you crossed the border, consult with CLA or other experienced immigration attorneys before anyone files papers for you.
How long does the process of spousal adjustment take?
If your spouse is a Citizen and you are in the U.S., the time it takes to obtain a green card is usually between 9 – 12 months, but it can vary depending on your particular case and where you live. If your spouse is a green card holder, it will take longer because you have to wait for your priority date to become current (currently almost 2 years).
Can I obtain work authorization while my application for adjustment of status is pending?
You can apply for work authorization (an Employment Authorization Document) once your green card application is pending. If your spouse is a U.S. Citizen, you can file all of your documents at the same time, including your application for work authorization. If your spouse is a green card holder, you cannot apply for work authorization based on the Family/Relative Petition. You can only apply once your priority date is current and you are eligible to file your green card application. It typically takes USCIS about 90 days to process an application for work authorization, which will allow you to work in the U.S. while your green card application is being processed. Once you have work authorization, you will be able to get a Social Security Number and a driver’s license.
Can I travel outside the U.S. while my green card application is pending?
Once you receive your green card, you can travel outside the U.S. However, you are not authorized to travel outside the U.S. just because you have filed a green card application. If you want to travel outside the U.S. while your green card application is being processed, you need to be approved for Advance Parole before you leave. You can apply for Advance Parole using USCIS Form I-131. It’s very important to note that even if you are approved for Advance Parole, that does not guarantee that you will be allowed to reenter the U.S. at the end of your trip. You will still be subject to inspection by a U.S. Immigration Officer at your port of entry to determine your admissibility into the U.S. It’s possible that you will be denied entry back into the U.S. even if you have been approved for Advance Parole and have a green card application pending. Anyone who has been out of status in the U.S. or who has any other complications should consult with CLA or other experienced immigration attorneys before applying for Advance Parole or leaving the U.S.
Does a criminal record impact my green card application?
Any interaction with the criminal justice system has to be reviewed and analyzed to determine if you are a good candidate for a green card. Depending on your specific situation, you may be able to apply, you may need to wait until more time has passed or you may not be eligible for a green card. It’s very important that you analyze your full history, both in the U.S. and in your home country, before applying for a green card. Anyone who has a criminal history should consult with CLA or other experienced immigration attorneys before applying for a green card.
Are there other requirements for getting a green card?
There are many other requirements not discussed above. This post is only a summary of a few key issues that arise with green card applications. There are many details that should be evaluated by a qualified immigration lawyer before you apply for a green card.