This guide answers common questions about adjustment of status from a tourist or student visa holder to a green card holder/lawful permanent residence through a USC spouse
What is adjustment of status?
Adjustment of Status is changing status from a temporary visa holder to a green card holder/lawful permanent residence without ever having to leave the United States. Example: Juan from Costa Rica comes to the US to visit on a tourist visa. He meets Sally, a USC and they marry. Juan and Sally probably do not want to be separated while Juan's green card application is being approved (which could take a year or so), so Juan applies for adjustment of status. Using the adjustment of status process, Juan can stay in the United States while awaiting his green card, so he doesn't have to be apart from Sally while his case is being processed.
Am I eligible for adjustment of status?
You are eligible to adjust status if: 1) You are an "immediate relative" of a United States Citizen. This includes husband and wife. 2) You were lawfully admitted to the United States. You were not lawfully admitted if you crossed without inspection by a border official. (Note: some individuals lawfully admitted to the United States are not eligible to adjust status (Crewmembers with D Visas, Exchange Visitors with J Visas, Entry on Transit Without a Visa). 3) Your USC husband or wife can support you financially (or if not, you have enough assets to supplement his/her income)
I came on a tourist/student visa, my tourist visa expired and I never left. Can I adjust status?
If you are a spouse of a United States Citizen, then you can still adjust status because marriage to a USC is an exception to the general rule that you have to leave the United States to get status, and then re-enter. The fact that you do not have to leave the country makes adjustment of status a great option. For one, you don't have to separate from your USC spouse for any length of time. Second, and most importantly, there is something called the 3/10 year bar that could stop you from coming back to the United States for a long time once you leave. Here is how the 3/10 year bar works. If you have been unlawfully (as in you came on a visa and didn't leave when you were supposed to) in the US for more than 180 days and leave, you are not allowed to re-enter for 3 years. If you have been in the US for more than 1 year and leave, you are not allowed to re-enter. There are pardons (called a waivers in immigration law) to the 3/10 year bar, but the waiver is a process with its own challenges.
I came to the United States and married within days of my arrival, can I still adjust status to a lawful permanent resident/green card holder?
Yes, you are eligible to adjust status. However, there will be a question of "preconceived intent." If you file to become an immigrant shortly after arriving on a "non-immigrant" visa, the government might take this to be a sort of bad faith - that is you entered for a temporary stay, but very quickly tried to make your time in the United States permanent. In other words, the government makes a judgment call of whether you entered the United States with the intent to become a green card holder/lawful permanent resident. If the government finds that your plan all along was to get a green card, then your application might be denied. Be prepared to answer some tough questions.
I am the spouse of a US Citizen, what is the preconceived intent 30/60 day rule, and does it apply to me?
First off, there is legal precedent that the 30/60 day rule does not apply to the husband or wife of a United States Citizen. Matter of Cavazos. Even through there is legal precedent about the 30/60 rule, you should still keep the 30/60 rule in mind, or at the very least, the concept behind the rule.
What is the 30/60 day rule?
The 30/60 day rule means that if you apply to adjust status to that of a green card holder/lawful permanent resident within 30 days of arrival to the United States, you are presumed to have entered with preconceived intent. In other words, for immigration officials, the starting point is that you entered with preconceived intent/bad faith and you need to prove otherwise. So, what if I apply within 60 days of arrival but more than 30? The 30/60 day rule says that if you apply for your green card/permanent residence in this time period, then you are not presumed to have entered with preconceived intent/bad faith. However, the immigration officer will be suspicious and so be prepared to answer some tough questions about your entry. Should I wait 90 days to apply? If you apply to adjust status through marriage to a US Citizen Spouse after 90 days in the United States, it does not automatically raise suspicion of preconceived intent, but again, it's good to keep in mind that you did enter on one type of visa, and now you are changing to another, a much more permanent one. You will likely still be asked questions about your intent at the time of entry.
What are other issues that I should think about when applying for a green card/lawful permanent resident through my United States Citizen Spouse?
Fraud or Misrepresentation can be an issue. An example of fraud would be a so called "Sham Marriage." Misrepresentation happens, when for example, at the visa interview, you tell an officer that you do not have any family in the United States, when in fact you have three siblings in the United States. Your "misrepresentation" may come out during a marriage interview with an immigration officer, and such a misrepresentation might stop you from obtaining lawful permanent residence. Another statement of similar magnitude may cause a problem as well. If this finding is made, you may be eligible for a pardon (in immigration law it's called a waiver). Waivers for fraud or misrepresentation are outside the scope of this article.
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