If you, a foreign national spouse, are currently in the U.S now, you can adjust your status to the Lawful Permanent Resident status if you meet other conditions as well.
Procedure for Concurrent Filing
File I-130 (Immigration Petition) and I-485 (Application for Adjustment of Status) and Affidavit of Support (I-864). Also, you can file I-751 (Application for Employment Authorization Document) and I-131 (Advanced Parole) all together.
What documents are needed for Adjustment of Status application?
Birth Certificate, Photos, Papers proving your marriage in good faith, medical examination report (I-693), tax return for the most recent year, passports and other documents in support of your marriage in good faith as follows;
Documents Needed in Support of Marriage Petition to Prove Bona Fides
- Copies of ownership papers for a jointly owned business, if applicable;
- Copy of joint lease/mortgage;
- Statements of Joint Bank Accounts;
- Copies of Joint Insurance Policies-auto or otherwise;
- Employer records showing the addition of a spouse to health insurance or other documentation showing that you shared or benefited from employee benefits available to supposes;
- Copies of vehicle titles showing joint ownership;
- Copies of utility bills in both names I.e. electric, phone, cable, water, cell phone, etc..;
- Copies of joint tax filings (you may request tax summaries directly from the IRS);
- Copies of joint credit card statements or individual credit statements sent to the same address;
- Birth Certificates of any children born to the marriage;
- Affidavits from any step children from the marriage discussing the marital relationship;
- School records or other information showing that you both were listed as parents of a child or step-child;
- Copies of telephone records highlighting calls to relatives;
- Receipts from purchase of wedding rings or gifts;
- Mail received that has both or one of your names with the same address;
- Copies of tickets or reservations for a trip that you have taken together;
- Photos of you together;
- Photos of you with the other’s family (if applicable);
- Correspondence between the two of you, including email or message left for each other at the marital residence;
- Correspondence from family members (greeting cards or letters);
- Wills and trusts listing the spouse as a beneficiary;
- Hotel records or other travel records;
- Video rental records showing joint accounts;
- Membership records (health club, AOL or other internet accounts) showing joint records;
- Church membership records or church directories showing that you attended church as a family;
- Prenuptial agreement;
- Cancelled checks on joint or separate checking accounts showing a sharing of household expenses;
- Love letters with envelops;
- Post cards sent to others; and
- Medical benefit letter from employer showing spouse as a beneficiary.
- Affidavits from at least two people who know of your relationship
Marriage on Tourist Visa / ESTA (Visa Waiver Program) and Adjustment of Status
Is it possible to apply for a Lawful Permanent Residence (so called “Green Card”) after I entered the US on a tourist visa?
That’s very tricky question because a visitor visa is not supposed to be an alternative way to enter the US with intent to get married to a US citizen and apply for a green card.
For this reason, USCIS always emphasizes that you utilize K1 visa or consular processing for your green card application. However, once you are physically present in the US after inspection at the port of entry without the intent for marrying, you are allowed to apply for a green card through Adjustment of Status (INA§ 245 (a)) if other conditions are met. The standard point of the time to determine whether you had such intent or not is the time when you entered the US. Thus, if you changed mind later after having entered the US and got married to a US citizen, it is permissible act to apply for LPR through AOS under the Immigration and Naturalization Act.
Alternatively, what else way can I take to apply for a Green Card?
You can apply for a Fiance Visa (K1) if you are not married yet or utilize Consular Processing for an immigrant visa. Please refer to Consular Processing for more information.
Q & A
Q1. I entered the US on ESTA (Visa Waiver Program, also commonly known as “No Visa”), can I apply for my Green Card though my marriage to a US citizen spouse?
Same as above-explained. However, it is not recommended even though it is possible and permissible under the law. Especially taking it both into account that you can stay in the US only for 90 days on ESTA and that you cannot do anything running afoul of the purpose of your visa or visa waiver program during the first 90 days (please refer to 90 days rule), applying for LPR after entering on ESTA could result in an undesirable situation down the road. However, once again, if you are already in the US and you did not have such intent when you entered the US, you would not have to get separated from your lovely family (spouse) just to complete the Green Card application. Please refer to Adjustment of Status application.
According to the USCIS’s Policy Memo (PM-602-0093) issued on November 20, 2013, it clearly verified that “INA 245 (c)(4) renders aliens admitted under the VWP ineligible to adjust status to hat of a person admitted for permanent residence. This provision, however, includes an exception for immediate relatives of U.S citizens. Thus, an individual admitted under the VWP who is also an immediate relative is not precluded from seeking adjustment of status, even after the VWP period has expired.”
The memo further states that “US Immigration and Customs Enforcement (ICE) has authority to order the removal of a VWP overstay, including an immediate relative, under INA Section 217(b) and 8 CFR 217.4(b). Numerous courts of appeals agree that, generally, a VWP overstay may not contest a removal action on the basis that he or she has filed Form I-485. However, these cases concern only the individual’s inability to contest removal…. Nor do these decisions preclude a VWP overstay who is not subject to a removal order from filing a Form I-485 with USCIS. Whether to grant adjustment to an eligible applicant is a matter entrusted to DHS discretion.”
Q2. My spouse is staying illegally in the US, is s/he still eligible to apply?
Maybe yes, if s/he entered the U.S legitimately and other conditions are met. Immigration and Naturalization Act allows the out-of-status to apply for Adjustment of Status if they are Immediate Relative (spouse, children, parents) of a US citizen and entered the US legitimately for the first place.
DOS developed a 90-day “rule” to assist consular officers in evaluating willful misrepresentation in cases involving an applicant who violated his or her nonimmigrant status or whose conduct is inconsistent with representations made to either the consular officer at the time of the visa application or to the immigration officer at the port of entry. The DOS 90-day rule creates a presumption of willful misrepresentation if an applicant engages in such conduct within 90 days of admission to the United States.
As soon as they apply for the change/adjustment in status, their past 90 days will be scrutinized for the following activities:
- Engaging in an unauthorized employment
- Enrolling in a full-time online/offline course without a relevant and appropriate change of status.
- Being an immigrant and marrying a U.S. citizen or green card holder.
- Undertaking any activities for which a change or adjustment in status is required, but they’re engaged in it without changing/adjusting status.
Many other activities can trigger the use of the 90-day rule.
90-Day Rule Exceptions
While the 90-day rule is used for all applicants looking to change/adjust their status, there are exceptions. Immediate relatives of U.S. citizens are exempted from misrepresentation for the first 30/60 days. This is true specifically for two cases (Matter of Battista and Matter of Cavazos). Immediate relatives applying for adjustment of status in these two cases can make use of the 30-60 day rule.
However, there are still risks involved that will ultimately be decided by the USCIS. If you, being an immediate relative, wish to make changes to your status within the first 90 days of entering the U.S., it’s highly recommended to consult with an attorney first.