Every year, many foreign nationals meet and fall in love with U.S. citizens and permanent residents while in the country on a B-1/B-2 visitor visa. Many couples choose to make their home in the United States. When that happens, the foreign spouse needs to get a green card to live in the United States legally. U.S. immigration law allows immigrants on tourist visas to petition for an “Adjustment of Status” from their visitor visa to a green card, but the foreign spouse must meet certain eligibility criteria to do so. In this article, we describe how a foreign spouse qualifies to apply for a marriage green card while on a visitor visa, and what the application process is like when they are changing their immigration status.
Applicants who meet certain conditions can qualify to change their immigration status from a visitor visa to a green card. First, you must be eligible for a green card. You can apply for a green card if you meet certain requirements, such as employer sponsorship or familial relationships with a U.S. citizen or lawful permanent resident. While many different family members qualify, immediate relatives have special priority. For example, spouses fall under the category of immediate relatives.
There are two different paths for spouses to receive a green card. If the spouse is not located in the United States, they can apply for consular processing. If the spouse is already located in the United States, the Immigration and Nationality Act (INA) allows them to apply for adjustment of status.
To apply for adjustment of status as the spouse of a U.S. citizen or lawful permanent resident, you must meet two requirements.
First, you must be located in the United States when applying. Second, you must have entered the United States lawfully. For most people, this means you entered the United States with proper travel documents and a valid visa. You also made contact with a Customs and Border Patrol (CBP) immigration officer and the officer recognized your entry. Spouses who entered through the visa waiver program can adjust their status only if they’re married to U.S. citizens. If you are now in unlawful presence, but your entry was lawful, you still qualify.
You need to be present in the United States to submit an adjustment of status application. However, it is important to recognize that B-1 or B-2 visa holders who use adjustment of status to apply for a green card may seem suspicious.
When you use a B-1 or B-2 visa to enter the United States, you have a nonimmigrant status because you declared that you intend to return home within a certain period. However, if you stay in the United States and apply for a green card, it may seem that you inaccurately represented your original intention to leave. As a result, a U.S. Citizenship and Immigration Services (USCIS) officer could reject your green card application and remove your visa if they decide you purposefully lied.
It is important to use the 90-day rule to avoid this potential issue. USCIS officers assume that temporary visa holders who apply for a green card within 90 days of arriving in the United States purposefully misrepresented their intentions to leave. USCIS officers decide whether or not you were dishonest about your intentions, so you may be able to prove that you were honest. However, it is safer to prevent this potential issue by waiting at least 91 days after arriving in the United States to file for a green card application.
When you’re sure you won’t be affected by the 90-day rule, you can apply for adjustment of status to obtain a marriage green card. Since your spouse already arrived via a B-1 or B-2 visa, they won’t be obtaining an immigrant visa but instead changing their current status. The process will be slightly different depending on whether your spouse is a U.S. permanent resident or U.S. citizen.
If you married a U.S. permanent resident and hope to get a marriage green card through adjustment of status, your spouse should file Form I-130. Form I-130 is the family sponsorship form and is officially named “Petition for Alien Relative.” After your spouse files this form, you must wait to receive a visa number to apply for a marriage-based green card. However, your next steps depend on whether you get your visa number before or after your B-1 or B-2 visa expires.
If you receive your visa number before your visa expires, you can stay in the United States to file your green card application. You will fill out Form I-485, which is officially named “Application to Register Permanent Residence or Adjust Status.” After USCIS approves your application, you will receive your physical card. The entire process, beginning when U.S. Citizenship and Immigration Services (USCIS) received your Form I-130, will take about 29 to 38 months.
If you receive your visa number after your visa expires, you have to leave the United States to file your green card application through consular processing. You will use the process for spouses married to green card holders but living in their home country. After USCIS approves your green card application, you will receive the physical card. The entire process, since USCIS received your Form I-130, will likely take 23 to 32 months.
You will have to leave the United States unless you can extend your B-1 or B-2 visa or get another type of temporary visa to remain legally. If you can do so, you can follow the process for spouses married to green card holders and living in the United States.
If your spouse becomes a U.S. citizen through naturalization while waiting for your visa number, you can switch your process to the process for people who married a U.S. citizen. You can do this even if you have already started your application process.
However, if you married a U.S. citizen and hope to get a green card through adjustment of status, you and your spouse will have a somewhat similar process when following the steps to obtain a marriage green card. You and your spouse should try to file the following forms at the same time. Although you can file them separately, that is unusual.
Your spouse, who is a U.S. citizen, should sign and file Form I-130, which is officially named “Petition for Alien Relative.” You, as the B-1 or B-2 visa holder, need to file Form I-485. Form I-485 is the green card application and is officially named “Application to Register Permanent Residence or Adjust Status.”
You will likely receive your green card 10 to 13 months after U.S. Citizenship and Immigration Services (USCIS) receives your application package if you married your U.S. citizen spouse “in good faith.” “In good faith” means that you did not marry them just to receive a green card, and you will have to prove this to the U.S. government.
You also have the option to return to your home country to file your green card application through consular processing. Your local U.S. consulate or embassy will review your application. There will be lower application fees and a longer processing time to receive your green card if you use consular processing.
Adjusting your visa status can be complicated. Here are some answers to frequently asked questions (FAQ), including application processing times, working in the U.S. while waiting, and other general application tips.
Immigration application processing times can vary widely. The time it takes to adjust status to a marriage green card can vary depending on whether your spouse is a U.S. citizen or permanent resident and whether you reside in your home country or the United States. On average, it will take 10 to 38 months to receive your green card.
If you are married to a U.S. citizen and living inside the United States, it will likely take 10 to 13 months. If you are married to a U.S. citizen and living outside the United States, it will likely take 11 to 17 months.
If you are married to a green card holder and living inside the United States, it will likely take 29 to 38 months. If you are married to a green card holder and living outside the United States, it will likely take 23 to 32 months.
You can work while waiting for your decision if you meet certain requirements. For example, if you came to the United States through a work visa, you could continue to work if the visa is still valid. If you came to the United States on a different visa, you might be able to get a work permit. You should file Form I-765, officially named “Application for Employment Authorization,” to receive a work permit. If U.S. Citizenship and Immigration Services (USCIS) approves your application, you can legally get a job.
As you are considering adjusting status to a marriage green card, keep in mind that you can request an extension for your B-1 or B-2 visa. If you have a six-month visitor visa, you can request an additional six months to stay in the country. You should file for an extension or adjustment of status before your current visitor visa expires. It is important to ensure you don’t overstay your visa and become unlawfully present.
You can also consider using a K-1 visa instead of a B-1 or B-2 visa if you have not yet married your spouse, but you will be traveling to the United States for your wedding. The K-1 visa is for foreign citizens who want to travel to the United States to marry their U.S. citizen fiancé. It allows you to apply for a green card after marriage without leaving the United States. In addition, the K-1 visa can help prevent further suspicion about your intentions when applying for adjustment of status.
Changing your status from a visitor visa to a green card can be complicated, but working with a good immigration attorney can make it easier. If you can't afford the attorney or law firm fees and don't want to handle your green card case alone, we may be able to help. If you are eligible, our free web app will walk you through the process and help you prepare and file your application with the U.S. government. Click "Get Started" to see how we can help make your American dream come true!