By Dev B. Viswanath, Esq. and Michael Phulwani, Esq.
Spouses of US citizens (USCs) and legal permanent residents (LPRs) (commonly referred to as “green card holders”) are entitled to seek permanent residence in most cases.
Spouse of US Citizen (USC)
A spouse of a USC is categorized as an immediate relative. If the spouse of a USC is already in the United States in legal status, then an immigrant visa petition and application for adjustment of status may be filed for the spouse with the US Citizenship and Immigration Services (USCIS). In some cases, even if the spouse has no legal status in the United States, he/she may still be able to apply for adjustment of status based on the marriage to a USC. Sometimes, the foreign national spouse is abroad and in such cases, the spouse may apply for immigrant visa at American Consulate/Emassy abroad after getting the I-130 petition approved by USCIS. Currently this process is taking between 8 to 10 months to complete if the foreign spouse is abroad and about 4 to 7 months if the foreign spouse and USC are both in the United States.
Spouse of Lawful Permanent Resident (LPR)
Visa numbers for spouses of LPRs are not immediately available due to backlogs. Therefore, an immigrant visa petition must be filed with USCIS initially which will secure a priority date that can be reference on the Department of State Visa Bulletin. If the spouse is in the United States and eligible for adjustment of status, an application for adjustment of status can be filed with the USCIS when the spouse’s priority date becomes current or the LPR sponsor becomes a naturalized United States citizen. If the spouse is residing out of the US, he or she can apply for immigrant visa at American Consulate abroad after the I-130 petition filed by the LPR has been approved, the immigrant visa matter then gets forwarded to National Visa Center (NVC) and all paperwork as required has been submitted to NVC. Once Visa Numbers as listed on the Department of State Visa Bulletin show that the priority date is current, an Immigrant Visa can be issued. Once the applicant arrives in the United States with their Immigrant Visa and packet, they become lawful permanent residents and their green cards will come in a few weeks. This process from start to finish, for most foreign nationals will take about 2-3 years whether in the US, or if the foreign national is abroad.
Eligibility requirements for adjustment of status
To be eligible for adjustment of status, the spouse and the USC or LPR must be married at the time of filing and adjudication of the I-485 application by USCIS. The marriage must be bona fide and the burden of proof rests with the applicant to prove the validity of the marriage. The key issue is whether the marriage was valid at its inception. To determine marriage validity at inception, USCIS looks at whether the spouses intended to establish a life together at the time of their marriage. Such intent can be established through evidence of joint financial accounts, jointly titled property, creating beneficiary rights, sharing health and auto insurance, and creating children together.
Visa processing at American consulate abroad
If the Spouse is residing abroad and the I-130 petition has been approved by USCIS and forwarded to National Visa Center, the processing commences with submission of all required documents including Form I-864 affidavit of support and the visa fees. Once NVC process is completed, NVC will schedule the interview at the American Consulate having Jurisdiction over the area where the applicant is residing. For example, persons residing in Gujarat would have to appear for the interview at American Consulate in Mumbai.
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