I MARRIED MY FIANCEE IN THE U.S. OR
I BROUGHT MY K-3 SPOUSE TO THE U.S.:
WHAT DO I DO ABOUT HER
ADJUSTMENT OF STATUS TO LEGAL RESIDENT?
FAQ ON THE ADJUSTMENT OF STATUS PROCESS
TO LEGAL RESIDENT FOR THE FOREIGN SPOUSE
BY: Gary G. Bala
USA Immigration Attorney
LAST REVISED: OCT. 2010
AFTER a U.S. Citizen marries* a foreign citizen fiance(e) in the USA under the K-1 Fiancee Visa, or brings the spouse to the U.S. under the K-3 Spousal Visa, the couple must begin a process of immigration called "ADJUSTMENT OF STATUS" for the new Spouse.
*MARRIAGE LICENSE REQUIREMENTS IN ALL 50 STATES:
As concerns the marriage license requirements in all the fifty (50) U.S. states,
please visit: Marriage License Requirements.
Because STATE FAMILY LAWS are separate and distinct from FEDERAL IMMIGRATION LAWS, SIMPLY MARRYING a foreign citizen Fiance(e) does NOT automatically assure legal status for your new Spouse, as some erroneosly believe.
The Adjustment of Status process can be thought of as the application process with Immigration Service for U.S. LEGAL OR LAWFUL PERMANENT RESIDENCY for your new Spouse. Approval of the new Spouse's Adjustment results in the issuance of the I-551 Stamp in the Spouse's foreign passport. Then, typically in six months or less, the I-551 "Alien Registration Receipt Card" or the famous "Green Card" is mailed out to the new Spouse (though it is no longer a green color.)
Minor children under age 21, natural and adopted, of the Applicant may be adjusted to Permanent Residence in the same way, under the same process at the same time as the Applicant Spouse.
II. THE ADJUSTMENT OF STATUS PROCESS:
A. How Is It Done?
Adjustment of Status is accomplished with the preparation and filing of the Form I-485 Application to Register Permanent Residence or Adjust Status with your local immigration office, which can be located here. USCIS Local Offices. [As of April 01, 2005, nearly all local offices now require that your Petition, along with any accompanying travel and work authorization petitions, now be mailed directly to the Lockbox of the National Benefits Center, P.O. Box 7218, Chicago, IL 60680-7218 USA, for initial receipt and processing, which then returns the Petitions back to local office for continued processing and interview appointment.] Current filing fee is $1,010.00, and payment is made by Check or Money Order payable to "U.S. Citizenship and Immigration Services" or "U.S. Department of Homeland Security".
WE ENCOURAGE YOU TO PLEASE CHECK THE IMMIGRATION SERVICE WEBSITE FOR THE LATEST LEGAL FORMS AND LATEST INFORMATION ON FILING FEES AND PROCEDURES. (www.USCIS.gov)
[As concerns Adjustment of Status petitions for K-3 Visa spouses, these require that your first secure and submit the I-797 Notice of Approval for underlying I-130 Petition filed at Service Center.]
Some people suggest that before filing your petitions, you make appointment and visit the local immigration office in person to ask questions and personally speak with a filing clerk who can "hand-check" your application and documents to make that sure your papers are in order. The new USCIS InfoPass Program will allow to you avoid waiting lines in most offices.
Processing times for this for the Adjustment of Status application can be long, ranging from 6-8 months on the quick end to 24-36 months on the long end. Model local offices such as the one in Dallas, Texas are experimenting with "Same-Day Interview" for Adjustment petitions and process time can take only a few weeks or less, while others such as the one in Phoenix, Arizona will need up to three years to process. To Check Currect Processing Times, Click Here and Select Your Office.
The Adjustment application also requires that the Petitioner submit the financial affidavit of support on behalf of the new Spouse, Form I-864. The Petitioner must show at least 125% of the minimum income guidelines for the current year and applicable household size suggested by the U.S. Department of Health and Human Services (Line 22 Total Income on Form 1040, or Line 15 on Form 1040A, consistently for three (3) years minimum): Federal Minimum Income Poverty Guidelines (USCIS Form I-864P for Year 2010). The Spouse applicant will also be required to submit to fingerprinting at a date and place selected by Immigration Service. Often, the Biographic Information Statements of the Petitioner and Applicant are also required:Form G-325A Biographic Information Statement. The Filing Fee for Biometric Fingerprint is now automatically included in the Filing Fee for I-1485 (Immigration Office will contact you about a date, time and location for fingerprinting of Applicant.)
WHEN DO I NEED TO FILE THE ADJUSTMENT PETITION?:
**K-1 (90 Day) Fiancee Visa Holders with Marriage in the U.S.: Immigration advises on paper that Applicants should file within the 90 days of the fiancee visa. Realistically, Immigration knows that this is not possible for many couples who after marriage might be more concerned with honeymoon and other issues to start a new life. Thus, Immigration allows a "reasonable time" after marriage or the expiration of the visa to file, usually interpreted to mean 30 to 60 days.
**K-3 (24 Month) Spousal Visa Holders with Marriage Abroad: Applicants (after they physically arrive in the U.S. with I-94 in hand) can and should file the Adjustment with your local immigration office (via the National Benefits Center) as soon as the Service Center has approved and issued the I-797 Notice of Approval for the underlying I-130 Legal Resident Petition. Processing time for approval of the I-130 can range from 6 months to 24 months depending on which area of the country and office is involved.
B. What If I Would Like My New Spouse to Travel or Work
While Our Adjustment Petition is Pending?
Because of the long processing times for Adjustment petitions, clients typically ask: What do I do while my adjustment petition is pending for my new Spouse if I would like her or him to travel and work? The answer is that there are two "quickie" petitions which are available for filing and which are typically decided in approximately ninety (90) days. These petitions allow travel and work permission for your new Spouse. These are: the Form I-131 Application for Travel Document (current filing fee $305, unless filed with the Filing Fee for I-485), and the Form I-765 Application for Employment Authorization (EAD) (current filing fee $340, unless inlcuded with the Filing Fee for I-485). Immigration Service has cautioned adjustment applicants that they must secure I-131 Travel Authorization before traveling abroad or otherwise their adjustment petitions are considered abandoned and they may be not be able to return to the U.S. See USCIS Press Release. Please also note that adjustment interviews and final petition approvals cannot be done while an adjustment applicant is physically traveling outside the U.S., and therefore if your case is reached while you are away, final adjustment approval must wait for your return to the U.S.
WHAT ABOUT HER SOCIAL SECURITY NUMBER AND CARD?:
The U.S. Social Security Administration is responsible for issuing Social Security Numbers and Cards. Click Here for their Website which contains list of local offices: http://www.ssa.gov/
**K-1 (90 Day) Fiancee Visa Holders BEFORE Marriage in the U.S.: Under current regulation, a K-1 Fiancee Visa Holder has work permission as soon as she arrives in the U.S. She is said to be "automatically work-authorized" for the 90 days of the K-1 Visa. Employers however will want to see a Social Security card and number. Thus, she should apply for the Social Security Card as soon as possible after her entry into the U.S., if she wishes to work as soon as possible. The two advantages to applying for a Social Security card and number for her as soon as she arrives in the U.S. are: 1) SHE CAN WORK IMMEDIATELY: She can start to work right away and earn income, if that is desired or needed, and 2) LESS WAITING TIME TO GET THE S.S. CARD AND NUMBER: If she waits until she is married to the U.S. citizen to apply for a Social Security card and number, the Social Security office will require that she first file her I-485 Adjustment of Status for residency AND also present the Employment Authorization Card (EAD) first before they will issue the Social Security card and number (an approximate 90 day wait for EAD approval). As far as her last name on the Social Security card, whether she applies during the 90 day K-1 Visa period BEFORE marriage, or tries to apply at some point AFTER marriage, the local Social Security offices will only agree to list her last name on the S.S. card as it appears on her original passport. If she wishes to use her "married last name" with the U.S. citizen on the Social Security card, then she must return to the Social Security office for a "Change of Name" on her card with, in hand, either a Lawful Permanant Resident "Green Card" or in some cases a Work EAD Card showing her married last name.
Here is the Social Security Administration Explanation regarding automatic work authorization for 90 day K-1 Visa holders: SEE ANSWER ID 576, CATEGORY Social Security Numbers and Cards for Non-U.S. Citizens. Here is the text of the Regulation. Regulation.
**K-1 (90 Day) Fiancee Visa Holders AFTER Marriage in the U.S.:If the K-1 Fiancee Visa Holder did NOT apply for a Social Security Number and Card before marriage to the U.S. Citizen, then she will first have to apply for Employment Authorization Document (EAD) after filing and approval the Form I-765 (usually approximately 90 days) and secure work permission before the Social Security Office will typically issue her the Social Security Number and Card.
**K-3 (24 Month) Spousal Visa Holders with Marriage Abroad: The K-3 Spousal Visa currently DOES NOT include work authorization. Typcially, the Social Security office will not issue a Social Security Number or Card until she has first secured the Employment Authorization Document after the filing and approval of the Form I-765 (usually approximately 90 days). Contact your local Social Security office for more and most current information.
C. What Supporting Documents Do I Submit?
In support of the Adjustment Process Petitions I-485, G-325A and I-864, the following sample is a list of supporting documents typically requested and submitted:
- Certified Copy of Marriage Certificate (Please order the official and complete Marriage Certificate as opposed to simply a certification stamp on the bottom of your Marriage License. Some states call this an "Exemplified" copy of Marriage Certificate specially for immigration.)
- Certified Birth Certificates of the Applicant and Petitioner
- Notarized Copy of Petitioner's U.S. Passport
- Copy of Form I-797 Notice of Approval of Fiancee Visa Petition
- The Applicant's I-94 Arrival/Departure Record and U.S. Visa and Foreign Passport, with Applicant's "A" number visible (Copy) For another photo of Form I-94, Click Here.
- The Applicant's Social Security Card, if she or he has one (Copy)
- Six (6) Color Passport Photographs of Applicant and Petitioner (separately)
[if you are filing all three petitions together, I-484, I-765 and I-131]
See USCIS Color Photo Specifications.
- Written, signed, dated and notarized Statements of the Applicant about her or his International Travel Plans (where, when, how long away and how often and for what reason), and Job Search and Employment Plans (where she will look for a job, what kind and when, and if she or he already has a job offer, details of the job offer such as name and address of employer, start date, job title and starting wage).
- The Applicant's Vaccination Report is also sometimes requested.
- [Financial Documents: While numerous financial documents are also eventually required, the local Immigration Office will usually accept and review these at the time of final interview, and thus you can usually submit these documents later.]
WHAT ABOUT HER STATE DRIVER'S LICENSE?:
K-1 and K-3 Visa Holders can usually apply for a state driver's license in most states with the Motor Vehicle or Transportation Department or Bureau. Those who hold a foreign driver's license or an International Driver's License may qualify more easily. Naturally, all states will require all her identification documents, immigration passports and visas, and a written and driver's test. Some states may require a Social Security Number and Card. Unfortunately, the Social Security Office will NOT normally issue a Social Security Number and Card soley for application for a state driver's license. SEE ANSWER ID 414, CATEGORY Social Security Numbers and Cards. Thus, the visa holder may be forced to first secure work permission with Immigration. Check this website for more information on State Driver's Licenses. http://www.dmv.org/
D. Will There Be a Medical Examination and Interview?
As for MEDICAL EXAMINATION, generally speaking, the regulations state that no additional medical examination is necessary if one was done for the Fiancee or Spousal Visa at the Embassy within one (1) year prior to the date of adjustment application. See 8 CFR Section 245.5
(8 CFR is found in the Immigration Service Website, Scroll to Section 245.5). This is a general rule only. In some cases, Immigration may choose to ask for another medical examination if the case does not appear for adjudication in the local office for more than a year since the Embassy examination, or for other good reasons. If needed, Immigration Service will notify the Applicant of requirements and location for Medical Examination and Form I-693 to ensure as a precuation that communicable diseases are not transmitted.
As for INTERVIEW, an Immigration Service officer will conduct and conclude an Interview at a date and location selected by the local office of both the Applicant and Petitioner. The purpose of the Interview is to satisfy the officer that the marriage and relationship are sincere and genuine, without an intent purely for immigration benefits. Typical questions at the interview will be questions for each partner of the marriage about the other's biography (place where they work, friends of each partner, middle name and birth place of each partner, etc.), and questions about how, when and where the couple met and how the relationship developed. Sometimes, the officer will ask for letters or affidavits from two friends attesting to the sincerity of the couple's marriage. Extensive background and security checks will be conducted before the Adjustment is approved.
WHAT ABOUT BRINGING HER RELATIVES TO THE U.S. ON VISAS?
There are two (2) broad categories of visas to bring over her relatives to the U.S.: IMMIGRANT AND NON-IMMIGRANT. Immigrant visas refer to permanent resident visas with "green card". Non-Immigrant visas refer to temporary short-visit visas such as tourist or visitor visas, work visas or student visas. For more information, See: "Bringing Her Relatives to the U.S." For more information on the tourist visa, See: "Tourist Visa".
The Adustment of Status Process will continue to be the key method and format to securing Legal or Lawful Premanent Residency or "Green Card" for your new Spouse after marriage under the K-1 Fiancee Visa process or under the K-3 Spousal Visa Process. Your diligent gathering of supporting documentation and, above all, patience with the procedure will help ensure that the Adjustment Process will be successful.
Copyright©. All Rights Reserved.
Gary G. Bala, USA Immigration Attorney.