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How to Get a Family Based Green Card Through Adjustment of Status and Immigrant Visa

Posted by E. Nicole Kozycki | Dec 07, 2018 | 0 Comments

Trying to navigate the immigration process can be challenging. However, the benefits of becoming a Lawful Permanent Resident (LPR) are well worth your troubles.

For a non-US citizen, the first step to obtaining permanent status in the United States is to apply for a Green Card. Green card holders are eligible to become U.S. citizens after 3 years (for spouses of U.S. Citizens) or 5 years for everyone else.

There are several ways to gain permanent residency through:

  • Family
  • Employment
  • Lottery
  • Asylum
  • And more…

This article will focus on the process to obtain a family-based Green Card.

What Ways Can I Get a Family Based Green Card? 

Within family-based green cards, there are numerous routes as well.

For both U.S. citizens and LPRs, there are paths to a green card available for your spouse, parents, children and siblings.

However, the available options and most importantly the wait times vary greatly.

For example, a spouse of a U.S. citizen who is in the U.S. on a student visa may be able to stay in the United States and apply directly for a Green Card, however, a brother of a U.S. citizen could have to wait 23 years to become eligible (based on the November 2018 Visa Bulletin, for siblings from the Philippines).

This huge disparity can be discouraging, that is why it is important to gain an understanding of what options you have to get a family based green card before you begin the process of application.

Marriage Based Green Card

For a marriage-based Green Card, for the spouse or potential spouse of a U.S. Citizen, there are three main options available:

  • Adjustment of Status
  • Immigrant Visa
  • K-1 Fiancé Visa

While the wait times are nowhere near as long as the 23 year wait time mentioned above, they still can vary significantly. Our goal is always to minimize the time spouses and family members have to spend apart, if at all.

If you find yourself looking for a way to get a family based green card in Atlanta, GA, or throughout Georgia, please contact us for a FREE CONSULTATION from our expert Atlanta Immigration Attorneys with over 25 Years Experience.

Selecting which path is best for your family is extremely important.

Adjustment of Status Through Marriage to a U.S Citizen

For immigrants that entered the United States legally and then married a U.S. citizen, even if you have since overstayed or have worked without authorization, you are likely eligible for Adjustment of Status.

Adjustment of Status is the official term for applying for a Green Card, also knows as Lawful Permanent Residency, while remaining within the United States.

Adjustment of Status allows you to skip consular processing abroad, and instead complete the entire process within the United States. To be eligible for Adjustment of Status you have to have lawfully entered the United States and be eligible for a Green Card.

One of the most common ways to obtain a Green Card through Adjustment of Status is after a marriage to a U.S. citizen. After having entered lawfully and having married a U.S. citizen, an applicant can apply directly to USCIS for their conditional or lawful permanent residency.

If you entered without inspection (EWI), meaning you crossed the border without a visa or prior approval, you can not apply through the Adjustment of Status process.

However, you can undergo much of the same process while remaining in the United States but will eventually need to return to you home country (with prior approval) to complete the consular processing process.

This process is know as a Provisional Waiver I-601A. We will discuss this process later in the article.

Major Benefits of Adjustment of Status:

  • You do not need to leave the United States to Consular Process
  • You can obtain work authorization and travel authorization (EAD/AP) within approximately 90 days of applying.
  • If you are out of status, meaning your most recent I-94 has expired, you can regain lawful status and ultimately be granted Lawful Permanent Residency, with the accompanying Green Card.
  • Approved Green Card Holders, who have applied through marriage to a U.S. Citizen, are eligible to Naturalize (to become U.S. Citizens) after three years as a resident.

Do I Have to Leave the U.S. If I Married a U.S. Citizen?

Often times, there is no need to leave the United States because adjustment of status is specifically designed to allow the spouse of a U.S. citizen to change their status while remaining within the United States.

There are a few exceptions to this, so be sure to talk to an immigration law expert near you before you leave (or stay) in the U.S.

Am I Eligible for Adjustment of Status Through My U.S. Citizen Spouse?

Besides marrying a U.S. citizen there are two main factors that determine eligibility for Adjustment of Status:

  1. You must be presently in the United States and you need to have entered the country lawfully, meaning that you entered the country with a proper visa, or through the ESTA visa waiver program. Of note: if you entered the country without inspection, know as EWI for entry without inspection, you are probably not eligible for Adjustment of Status unless you fall within very narrow exceptions.
  2. You must not have gotten married within the first 90 days of entering the United States. (*90 days is the current rule, and is subject to change without notice. It is very important to check what the current rule is PRIOR to getting married.)

As mentioned above, if you don't meet both these requirements, you may still be eligible for a Green Card, but you will just need to go through the consular processing and re-enter the U.S. with an immigrant visa.

This process can be long and confusing, so we recommend working with an Immigration Attorney who specializes in Adjustment of Status.

K-1 Fiancé Visa

The K-1 visa, more commonly known as a Fiancé Visa, is available to foreign nationals who wish to enter the United States for the purpose of marrying a U.S. citizen. The K-1 Fiancé visa is the first step in a longer process that leads to a Green Card for the applicant.

This Visa allows entry to the United States in order to get married within 90 days to a U.S. citizen. After the marriage, the U.S. citizen will need to petition for their new spouse to become a conditional resident, through the Adjustment of Status process (discussed above).

The K-1 Fiancé Visa application needs to be submitted to USCIS and will in turn be sent through the National Visa Center (“NVC”) to the consulate for your country. You will then attend an interview at the consulate and ultimately be issued your K-1 visa.

K-1 Visas allow you to enter the United States as a fiancée so that you can get married within 90 days of entry. You must file the application to adjust your status to a conditional resident before the 90 day period expires or you must pay additional fees and risk being in the U.S. unlawfully.

Who is Eligible for a K1 Fiancé Visa?

You must be engaged to a U.S. Citizen and intend to get married in the United States within 90 days of entry. Depending on the current backlog and the location, the process can take around three to four months, therefore you will need to plan ahead prior to setting a wedding date and booking a venue (if applicable).

You must have physically seen each other in the past 2 years.

Will My Fiancé Be Able to Work After Entering on a K-1 Fiancé Visa?

Not immediately. We will have all documents prepared and ready and then once you have the official Marriage Certificate in hand we will submit your application to adjust your status and expect to have your Employment Authorization Document and Advance Parole (EAD / AP) in approximately 90 days. The processing times can vary based upon USCIS backlogs.

The K-1 itself does not carry with it work authorization. However, after you are married you will need to file for the Adjustment of Status. Along with the Adjustment of Status you can request both employment and travel authorization, this process takes approximately 90 days from filing.

Can We Go on a Honeymoon Overseas After Our Wedding if My Spouse Entered on a K-1 Fiancé Visa?

Until you have received Advanced Parole based on your pending adjustment of status application, you cannot leave the United States without abandoning your petition and your filing fees. The sooner you wed and file to adjust, the sooner you will be able to leave the U.S. with your new spouse. It is not recommended to leave the U.S. without first confirming you are able to do so with your attorney.

I-601A Provisional Waiver

The I-601A Waiver is specifically to request the U.S. government to waive unlawful presence that has accrued after an unlawful entry so that the family member (often a spouse) can leave the U.S. and re-enter legally as a residence of the U.S.

Typically, they could not leave without triggering a re-entry bar from accrued unlawful presence. This process waives that bar and allows for a spouse visa to be obtained from the consulate abroad.

The first step is always the filing of a petition for your relative that must be approved by USCIS before the waiver can be started. The waiver is based on hardship to your relative, who may be your spouse and children. Once the waiver is approved, the family member can leave and re-enter the U.S.

While the waiver applicant waits for the final approval, they are not technically in a lawful status and therefore do not get the benefit of a work permit or other protection from deportation.

Once approved and they do depart the U.S., typically your family member will only be abroad for 2-3 weeks to get a medical exam and complete consular processing.

It is very important to discuss your criminal history with an Immigration Lawyer near you before starting this process and again before you leave the U.S. to make sure you do not have any inadmissibility issues other than unlawful presence.

Frequently Asked Questions About Marriage Based Green Cards

The visa laws can be a bit confusing. We get a lot of the same questions from our clients, so we thought we would take the time to answer some frequently asked questions about marriage based green cards.

What is Adjustment of Status?

The process of applying for permanent residence status (green card) while in the United States without departing.

What is the difference between applying for Adjustment of Status and Immigrant Visa?

Applying for Immigrant Visa is the process of getting a visa overseas at a U.S. Embassy or Consulate and then coming to the U.S. upon receiving that visa. If the person is outside the U.S., the only way to immigrate to the U.S. is through consular processing (immigrant visa). Adjustment of Status is the process of applying to adjust your current immigration status when you are already in the U.S.

If you are within the U.S. do you have to have a valid non-immigrant status to apply for Adjustment of Status?

No. You do not need a valid non-immigrant status to apply for adjustment of status, however, you will need to establish a lawful entry.

What are the requirements for Adjustment of Status?

Typically the applicant must be present in the U.S. as the result of a lawful entry after being inspected at the border, be an immediate relative (spouse, unmarried children under age 21, and parents of U.S. citizens), and have no disqualifying criminal history.

Am I required to leave the U.S. when applying for an Adjustment of Status?

No. You are not required to leave the U.S. and return to your country of origin when applying for adjustment of status. You will have international travel permission after the first 3-4 months through an approved advance parole application, but you do not have to use it.

What is the processing time for Adjustment of Status and Immigrant Visa?

While adjustment of status can take 10-12 months on average, and an immigrant visa has a processing time of about 7 to 9 months.

Am I allowed to travel while applying for an adjustment of status?

Yes. We always request advance parole for our pending adjustment of status clients. Advance parole is essentially pre-approval to travel and will keep you from automatically abandoning your petition by leaving the country.

What are the fees for adjustment of status and immigrant visas?

The typical filing fees for adjustment of status are $1,760 (due at the beginning) and for the immigrant visa around $1,200 (spread throughout the entire process).

Where to Find the Best Immigration Lawyer for Adjustment of Status and Family Green Cards in Georgia

Kozycki Law has been in the business of helping clients get the immigration law expertise that they need for well over 25 years.

In this time, we have encountered it all. Through multiple administrations, we have remained up to date with the laws and geopolitical factors that affect the immigration process in order to help our clients get into the country and obtain Green Cards in order to make an honest living to change their lives and their families' lives.

Unlike a lot of other Immigration Attorneys in the Georgia Area, we offer free consultations in order to go over your case, understand your situation, and offer free professional Green Card and Immigration advice to help you gain all the information possible to decide what is right for you and your family.

We understand the stress that this process can put on people, and we are here to support you every step of the way.

About the Author

E. Nicole Kozycki

Immigration and Deportation Lawyer


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