Petition for Adjustment of Status when Marrying a Green Card Holder
When applying for immigration benefits, it is highly important to be beyond familiar with nuances. Most immigration applications that are based on family petitions are via U.S. citizens. But what if you marry a green card holder? Can you still receive immigration benefits?
Yes, and no.
See, when there is a marriage between a U.S. citizen and someone who is in the U.S., even if that person is out of legal status (overstayed visa), immigration allows USC spouse to petition for out of status spouse, and the process works the normal ways, via an I-130, in conjunction with an I-485, request for work permit I-765, and I-130A.
It is different with green card holders / permanent residents.
When marrying a green card holder, a spouse is no longer considered “immediate relative“, but a “preference relative“. Immediate relative is only for sons and daughters who are unmarried, or for parents. The more important thing to note is that when marrying a green card holder, the beneficiary (the party asking for immigration benefits) spouse MUST remain in immigration status (must have valid status in US), and must remain in status throughout the process while he or she is waiting for an interview with a USCIS Officer.
Though USCIS makes some exceptions if the status is less than 180 days, general rule is to be in status at the time of application, and to remain in status.
USCIS also provides for “unlawful presence waiver”, which we will discuss in another blog.
Important is: Stay in status and have current visa when marrying a green card holder if you are in the U.S.
Much love and success on your immigration journey. for any questions please visit our immigration services page.