Spouses of US citizens can benefit from a petition for alien relative. This requires that there be a marriage and the petition requires evidence of the marital relationship. The stand-alone petition is for situations when the spouse of the US citizen is outside of the US. When the spouse of the US citizen is in the US, an Adjustment of Status application may be more appropriate. A spouse petition submitted on its own goes through 2 stages: USCIS petition stage and Department of State processing. Forms, fees, and supporting documents are required at both stages.
Frequently asked questions:
1. I heard of a K-3 petition that will bring my spouse into the US faster. Should I submit a K-3 petition?
A K-3 petition does bring the spouse into the US faster. However, instead of a 2-stage process, the K-3 makes it a 3-stage process by adding an adjustment of status process after the spouse enters the US on a K-3 visa.
2. My spouse was denied an immigrant visa at the embassy. What should I do?
Denials are becoming a more common occurence at the US consulates. When the consulate denies an immigrant visa application, the underlying petition is returned to USCIS for revocation. You should contact an attorney to look at the options available to you.
Adjustment of Status (Concurrently filed with petition)
The term "adjustment of status" is distinguished in immigration practice from "change of status." "Change of status" refers to transitioning from one non-immigrant classification to another non-immigrant classification. "Adjustment of status" means transitioning from a non-immigrant classification to permanent resident status while the individual is in the US. This is done through an employment based immigration route while maintaining non-immigrant status or through a qualifying relationship to a US citizen (or in certain limited cases, a US lawful permanent resident). Whether it is through an employer or a family member, there must be an immediately available visa number for the applicant.
The most common adjustment of status application arises from a situation where an individual who entered the US in one visa classification subsequently marries a US citizen.
The adjustment of status application can be a complicated process with the various forms and supporting documents USCIS requires you to submit. You will likely have questions about a number of aspects of the application process, including your immigration status and work authorization before and after filing the application and the significance of any past immigration violations. You may also be concerned about how long the process will take, how soon you can begin to prepare the application and what the application process entails. Each individual case is different from the next and the preparation of an application must account for the concerns of the married couple and the underlying facts in the background of the non-citizen spouse.
Frequently asked questions:
1. Does the marriage automatically give me permanent resident status?
No. This is a common misconception. You must apply for permanent resident status through US Citizenship and Immigration Services (USCIS). Again, not everyone is eligible, and your particular eligibility should be discussed with an attorney.
2. Are all non-US citizen spouses eligible to adjust status to permanent resident if they are married to a US citizen and are now in the US?
No. Many are eligible, but there are exceptions. In many cases, even if there are periods of overstay, the non-citizen spouse may be granted permanent residency. Still, there are bars to adjusting status and your particular eligibility should be discussed with an attorney. Non-attorney form drafting services may not be able to provide legal advice regarding an applicant's eligibility.
3. Now that I am married to a US citizen, can I leave the US?
You should seek the advice of an attorney before you make arrangements for travel outside of the US. Even if your reasons for traveling are urgent, you should do everything you can to preserve certain benefits before you travel and to avoid certain consequences that are triggered by leaving the US.
4. Someone told me that I can receive work authorization just a month after applying for adjustment of status?
Be very careful with the information that you hear out there as to what benefits are granted during the process and how long it takes for benefits to arrive. An employment authorization application can be submitted in certain cases, but timing of any grant of work authorization will fluctuate with USCIS processing times and it is certainly longer than one month. Please, be careful with promises regarding approvals and speedy time frames. Some lawyers and paralegals will make unrealistic claims to drive business to their offices.
5. If my spouse submitted an I-130 petition for me, can I remain in the US.
An I-130 petition, alone, does not give the beneficiary spouse any authorization to remain in the US. If you are in the US with a visa, you should sit down with a qualified attorney to see what can be done at all for you to remain in the US. If you have already overstayed in the US, having entered with a visa, an attorney should be able to advise you on the effects of your overstay on any petition or application in the future.
6. What if I'm only a permanent resident and not a US citizen? Can I still submit a petition for my spouse?
The generous benefits that are enjoyed by spouses of US citizens do not extend to spouses of lawful permanent residents in the US. Still, there may be options available and an attorney should be able to discuss what limited options you have. More importantly, an attorney will be able to guide you through certain decisions so that any future petition or application you may submit is not harmed by actions that you take now.
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