Generally, spouses of foreign nationals obtain their U.S. citizenship before petitioning for them to adjust their status in the United States. During consultations, some individuals have appeared confused when they discover that as green card holders they may petition for their spouse who is currently overseas or even in the United States. But why is this so confusing and different from being married to a U.S. citizen? Well, glad you came to read this blog because that's exactly what we are about to cover!
U.S. immigration law is confusing, complicated and it changes often so people are not always able to keep up with these ongoing changes. But somehow there is an unspoken rule that spouses of U.S. citizens may get away with certain things like unauthorized work or overstaying on their visas. While this may be true, why are the rules so different for green card holder spouses? Now, this gets a bit tricky.
As an immigration attorney, there are always questions we need to ask to really figure out whether an adjustment of status can take place for a foreign national who is married to a legal permanent resident. We always ask questions like:
(a) Is the foreign national's visa status still valid after entering the United States lawfully?
(b) Did the foreign national enter with a visa that allows them to adjust their status in the United States?
(c) Did the foreign national file an extension of status?
(d) When did the marriage take place?
(e) Was the I-130 petition already filed?
Depending on the responses, we move onto what can or cannot happen. The rules and regulations for legal permanent resident spouses are different because they fall under a 'preference classification' where visas are limited and it all depends on whether a visa is available for them or not. U.S. citizen spouses are considered 'immediate relatives' and there is no wait time for a visa. So back to the questions above, if the foreign national entered the U.S. lawfully and has a valid visa, an adjustment of status application may be filed. But if they are at a stage where they waited too long to consult with an experienced immigration attorney and thought they can just file an extension of status, that extension of status will not give them a valid status. Currently, extension of status applications are taking USCIS approximately 15 months to adjudicate and the foreign national would need to wait until that application is approved. There is no guarantee that USCIS will actually approve an application to extend the applicant's status. This is definitely something to think about. If the spouse of a green card holder has fallen out of status, then adjustment of status is not possible and they may consult with an immigration attorney to see if they have other options.
Let's now divert our attention to the June 2023 NVC bulletin and what USCIS expects you to do. Each month, a bulletin is published which summarizes the availability of immigrant numbers during that month. USCIS has also indicated that individuals must follow their instructions on which chart to follow for that month if the foreign national is eligible to file for adjustment of status based on the 'Family-Sponsored Preference' section. Right now, if the 'DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS' is current for spouses of green card holders, then the adjustment of status application may be filed (if eligible) but the foreign national/beneficiary must wait until a visa is available under the 'FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES' in order to get their green card. The wait time varies by country and of course the bulletin may change. Monitoring and understanding the chart is helpful.
If you have more complications in your case or you are confused about whether you are eligible for adjustment of status in the United States, it would be best to set up a consultation to discuss your case in detail.
This blog was written by Attorney Poonam Minhas for informational purposes only. This blog is not to be construed as legal advice nor a formation of an attorney-client relationship. If you have questions about your immigration case, you may contact our law firm to set up a consultation. [May 2023]
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