Marriage-Based Green Card: When to Apply for Adjustment of Status or Consular Processing?

Marriage-Based Green Card: When to Apply for Adjustment of Status or Consular Processing?

If you have any questions related to immigration to the United States, call us today at (619) 746-8879

Those who immigrate to the United States are usually interested in obtaining a Green Card to live permanently and legally in the country. Although it is an ambitious goal, it is the most appropriate way to immigrate.

To achieve this, there are two processes. One is consular processing, which involves applying for a Green Card from abroad; the other is known as adjustment of status and takes place when the person in question is already in the US.

And, as many know, marriage to a US citizen is one of the strongest and closest bridges to carry out this process. Therefore, on this occasion, Kannan Law will focus the content on explaining the requirements and conditions in which it is convenient for a couple to decide on one option.

Marriage-Based Green Card

In general, people in lawful permanent resident (LPR) status are listed as eligible for naturalization in the US; however, the time they wait for this process may be more or less depending on their particular condition and the arguments at the time of applying for the Green Card.

A marriage-based petition would allow the spouse of a US citizen to work and live without time restrictions in the US legally.

For this, it is necessary that the applicant is a permanent resident and has lived in a marital union with their partner for at least three years before applying for the Green Card. These are two critical aspects that the authorities will confirm in due course.

Ways to apply for a marriage-based Green Card

However, depending on the case and, specifically, where the couples are located at the time of making the request, there are two ways to proceed: adjustment of status and consular processing.

All marriage-based (or other condition-based) Green Card applications filed from the United States are handled by the United States Citizenship and Immigration Services (USCIS). This body is part of the United States Department of Homeland Security (DHS).

Instead, applications filed from abroad are processed by the National Visa Center (NVC), which is part of the US Department of State.

Adjustment of status within the US

If both spouses live in the US, the procedure by which one of them will apply for a Green Card is known as adjustment of status. In this case, the spouse who already has citizenship can sponsor a relative before USCIS and endorse the link through Form I-130, Petition for Alien Relative, provided by the same institution. This is usually filed concurrently with the application for adjustment of status (I-485), a situation known as “concurrent filing.”

Processing or consular procedure from abroad

On the other hand, if the US citizen’s spouse lives abroad, the procedure they must follow is consular processing. Its name is because the authorities involved are the US consulates and embassies in the corresponding country.

Living together in the United States

To proceed with the adjustment of status, both the sponsoring spouse with citizenship and the applicant spouse for the Green Card must be physically in the US. In addition, the latter must have a valid immigration status, such as a work visa, a student visa, or a valid temporary visa.

Generally, this is the best option if the applicant’s spouse wants to remain in the country while waiting for approval, which can last between a minimum of 9 months and up to 36 months, depending on the case.

In this context, the spouse seeking the Green Card will be able to remain in the US even if her current immigration status expires. However, strategic planning is essential as there are legal risks in staying in the country on an expired visa, even for those awaiting naturalization approval.

Living abroad

However, there is also the case of couples living abroad. The steps they take toward naturalization depend significantly on their short-term plans. However, these can also apply through consular processing.

This is a standard option for those situations where the non-naturalized spouse needs to spend time in their country of origin for different reasons. For example, for work, selling their property, finishing their education, or completing certain errands.

There are two ways to process the spouse’s Green Card application:

Process with the sponsoring spouse living in the US

There are cases where a spouse lives abroad despite being married to someone with US citizenship who is inside the country.

The first step is to present the previously mentioned Form I-130, which talks about two figures: the sponsor, who is the spouse currently a US citizen, and the beneficiary, who would be the applicant’s spouse.

USCIS then transfers the case to the NVC, who will collect the forms and documents, do the corresponding reviews, and decide if the beneficiary is ready for an interview at a US embassy or consulate abroad. Before the interview, there are also medical examinations, registration for fingerprinting, and providing an address to which to deliver the passport in case the application is approved in the last step, which is the interview.

In some cases, couples can send their application documentation to a USCIS international office. This would be advantageous in terms of time since the wait is usually less than requests sent to embassies and consulates.

Exceptional circumstances

There is also the option of exceptional circumstances that include very particular cases. Among them that the sponsor is in the US military, abroad, and deployed. Also, when either one of the spouses needs urgent medical treatment in the US or is subject to an imminent threat to their safety.

In these cases, couples can also apply directly to the nearest US embassy or consulate in their country.

Essential Requirements

Whatever the case, there are a series of requirements before submitting the Green Card application for the applicant’s spouse. Below, we present them in detail to ensure that you have the right profile, prepare properly and make the most of your time.

• The spouses must have resided in the US at some point and have proof of it. For example, having a job in the country or maintaining a house, all backed up by an income tax return.
• They must also demonstrate their intention to maintain their residence in the US once the beneficiary receives their Green Card. To do this, the sponsor must submit to the authorities an affidavit indicating that they want to return to the US and live there with their partner.

In this case, it would be necessary to present documentation that validates said intentions, such as a lease in the US, children enrolled in US schools, bank accounts, or even an employment contract.

Whatever the case, it is best to get advice regarding the documents and strategies to implement when requesting an adjustment of status or consular processing. At Kannan Law, we are immigration lawyers in San Diego, California, which is why we make our contact section available. Click here to tell us about your case, and we will offer you the most personalized advice possible.