Jordan Mitchell

Changing Status to a Marriage Green Card: Adjustment of Status vs. Consular Processing

There are two main pathways for obtaining a marriage-based green card: adjustment of status and consular processing. Your eligibility and the process you'll follow depend on your current location, immigration status, and whether your spouse is a U.S. citizen or a lawful permanent resident. This guide will help you understand the key considerations for each pathway.

Adjustment of Status

Adjustment of status is for applicants already in the United States. Here are important factors to consider:

The 90-Day Rule

The 90-day rule is crucial for those entering the U.S. on nonimmigrant visas. If you apply for immigrant status within 90 days of arrival, immigration officials may conclude that you misrepresented your intentions when entering the country.

Dual Intent

Some nonimmigrant visas allow for "dual intent," meaning you can have both nonimmigrant and immigrant intent simultaneously. However, the TN visa does not allow for dual intent, making adjustment of status risky for Canadian and Mexican citizens holding this visa.

Process for Spouses of U.S. Citizens

If you're married to a U.S. citizen, after waiting at least 90 days since arriving in the U.S., you can apply for adjustment of status by filing:

• Form I-130 (Petition for Alien Relative)
• Form I-485 (Application to Register Permanent Residence or Adjust Status)

You can remain in the U.S. even after your TN visa expires once you've filed these forms. You may also apply for work authorization and advance parole for travel purposes.

Process for Spouses of Permanent Residents

If your spouse is a green card holder, the process depends on visa number availability:

1. File Form I-130
2. Wait for visa number availability
3. If a number becomes available before your TN visa expires, file Form I-485
4. If not, you may need to pursue consular processing

Consular Processing

Consular processing involves applying for your green card from your home country. This option is safer for TN visa holders but has its own considerations:

For Spouses of U.S. Citizens

1. File Form I-130
2. After approval, submit Form I-864, DS-261, and DS-260 to the National Visa Center
3. Complete a medical examination and attend a consular interview in your home country

For Spouses of Permanent Residents

1. Your spouse submits Form I-130
2. Wait for your priority date to become current
3. File Form DS-260 online
4. Complete medical examination and consular interview in your home country

Key Considerations

• Adjustment of Status: Allows you to remain in the U.S. but carries risks for TN visa holders
• Consular Processing: Safer option but may require extended stays in your home country

Additional Resources

• USCIS - Adjustment of Status: https://www.uscis.gov/green-card/green-card-processes-and-procedures/adjustment-of-status
• U.S. Department of State - Consular Processing: https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process.html

Disclaimer

The information presented in this article is intended for academic and marketing purposes only and should not be construed as legal advice. It is essential to consult with a qualified immigration attorney or legal professional for accurate and up-to-date legal counsel specific to your individual circumstances. Laws and regulations are subject to change, and professional guidance is crucial to ensure compliance.

OpenSphere is a technology company and does not hold itself out as a law firm. It operates independently and is not affiliated with or endorsed by the U.S. Citizenship and Immigration Services (USCIS) or any government entity. OpenSphere, its authors, and agents do not warrant the accuracy or real-world applicability of the information herein, nor are they liable for any damages arising from reliance on this information.