Adjustment of Status through Marriage

by George Barron

An alien who entered the United States “with inspection” may, under some circumstances, adjust his or her status and become a Permanent Resident of the United States without leaving and reentering the United States.  One of these situations is when the alien marries a United States citizen.

The process for adjusting the status of an alien lawfully present in the United States who marries a United States citizen requires proof of several crucial factors.  We must prove that the alien entered the United States “with inspection,” meaning with a valid visa or visa waiver.  We must prove the identity of each party, and we must prove that the person marrying the alien is in fact a United States citizen either through birth or naturalization.  We must prove that the alien and the citizen are legally married.  This includes proving that any prior marriage is entered into by either of the party’s were dissolved at the time of the present marriage, in addition to proving that the present marriage is valid.

Even though in this scenario the intending alien is present in the United States and does not require to leaving the United States in order to adjust his or her status, USCIS looks at this process as if the alien were outside the Unites States.  For this reason, in addition to filing the appropriate petitions to obtain permanent resident status, we must also file for a Spousal Visa.  Part of the requirement for a Spousal Visa application is that the applicant show that the intending immigrant will have sufficient financial resources to meet his or her needs while in the United States and unable to lawfully work.  In order to satisfy this requirement we need to submit at least one affidavit of support in addition to tax returns and other financial documents proving that the sponsor, in this case the spouse, has sufficient income to support the alien.  If the sponsor does not have sufficient income to support the alien, the sponsor may ask another United States citizen or permanent resident to agree to provide financial support for the alien if needed.

In addition, we establish that the applying alien does not suffer from any health-related concerns that would bar him or her from entering the United States.  Specifically, we need to submit a medical examination form completed and signed by a doctor specifically designated by USCIS as a “designated civil surgeon”.

In most case, we also apply for employment authorization to allow the alien to work while the application for Permanent Residence is pending.

The intending alien will be required to travel to Philadelphia in order to have his or her photographs and fingerprints taken.  This process is called “biometrics.”  As with all USCIS appointments, it is very important that the alien be available for this appointment when it is scheduled.  It is possible to reschedule appointments in the events of emergency, but doing so tends to add a substantial amount of waiting time to the process, and invites higher possibility of a mistake on the part of USCIS.

The final step before Permanent Resident status is granted is an interview of the applicant and beneficiary, conducted by USCIS staff at the closest USCIS Field Office.  The purpose of this interview is to determine to the satisfaction of the USCIS officer, that the marriage is genuine or “bona fide” and was not entered into for immigration purposes.  Typically, the immigration officer will interview both parties together, and may speak to each party individually with the other party out of the room.  The immigration officer will ask each party questions about the other intended to establish whether or not they really know each other and whether or not their marriage is real.

This is an interview, not a hearing.  You may have your attorney present, but you do not need to have an attorney at this interview.  Because this is an interview and not a hearing, your attorney cannot answer for you, object to questions, whisper in your ear or argue on your behalf.  The USCIS officer does not want to speak to your attorney – he or she wants to speak to you.  With few exceptions, I do not believe it helps my client to attend this interview, and therefore I prefer to save my clients some money by not attending.  I am glad to answer any questions that you have and /or assist you in preparing for the interview.  In the event that USCIS requires additional information after your interview, I will assist in providing it.

Once the interview is complete your petition should be approved and the Permanent Resident card (aka the “green card”) should be mailed to you.  I have never had an application denied based upon the interview stage.  I have been informed that some of the USCIS officers who perform the interviews are less then pleasant, but none of my clients who attended their interview have been denied Adjustment of Status by the USCIS.

If the marriage is less than two years old at the time of the application, the alien will become a conditional Permanent Resident, and the “green card” will have an expiration date 2 years from issue.  The alien must apply – usually with his or her spouse – to remove those conditions before the “green card” expiration date.  If the alien does not do so, he or she falls out of status and becomes removable from the US.  An unconditional Permanent Residence card has an expiration date 10 years from issue – and the alien’s status does not change just because the card expires.

As a Permanent Resident, the alien has permission to live and work in the United States indefinitely and with very few restrictions.  Any Permanent Resident should be careful about extended absences from the United States, as an extended absence may lead the USCIS to the conclusion that you have abandoned your Permanent Resident status, and may present a problem when you try and reenter the United States.  In addition, certain crimes and other activities may lead the United States government to take action to strip the alien of their Permanent Resident status and remove them to their home country.

Keep in mind that an alien who becomes a Permanent Resident through marriage to a US citizen can apply for naturalization after only 3 years as a Permanent Resident.  I strongly recommend that my clients do so as early as possible.

Please contact my office with any questions about this or other immigration questions.

George Barron, Esquire

88 North Franklin Street

Wilkes-Barre, Pennsylvania 18701

Telephone (570) 824-3088

Fax: (570) 825-6675

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