Adjustment of Status to Permanent Residence (Spouse of U.S. Citizens)

A foreign-born person previously admitted into the U.S. as a nonimmigrant may often secure permanent resident status (a green card) upon petition by their U.S. Citizen spouse. The process is known as an "adjustment of status" (AOS or adjustment), and permits permanent resident processing without requiring the foreign spouse to depart the U.S. and apply for an immigrant visa at a U.S. Consulate abroad. AOS can therefore be more convenient, less costly, provide greater certainty, avoid certain legal bars to readmission, and, in many cases, prove less time consuming than consular processing. AOS is, however, a discretionary procedure which may not be available in every case. Fortunately, immediate relatives may adjust under circumstances that others cannot, most notably where the foreign spouse has overstayed their term of admission or has engaged in unauthorized employment.

Process Overview

Filing the Application

The AOS process begins with the concurrent filing with the U.S. Citizenship and Immigration Services (USCIS) of a "Petition for Alien Relative" by the U.S. Citizen spouse and an "Application to Register Permanent Residence or Adjust Status" by the foreign spouse. Although the two filings will be adjudicated together, they are considered two separate proceedings achieving two separate ends. The alien relative petition establishes that the petitioner is a U.S. citizen, that the petitioner and the beneficiary spouse are lawfully married, and that the marriage was entered into in good faith and not for the purpose of securing an immigration benefit. The adjustment application establishes the identity of the foreign spouse, establishes that there are no admissibility issues affecting approval (such as affidavit of support inadequacies, medical issues, certain types of criminal convictions, or certain immigration violations), and provides sufficient information to conduct background checks.

Keep in mind that the immigration laws require that the couple establish that the marriage was entered into in good faith. This is usually demonstrated by evidence of continued cohabitation throughout both the marriage and the adjustment process, as well as other documents showing the couple is actively sharing their lives. Although a commuter marriage, with one spouse traveling during the week, will not necessarily bar an adjustment, it is very important in these cases to develop substantial evidence that the spouses are together during weekends, holidays, and vacations.

Note also that, upon grant of the adjustment, if the couple has been married for less than two years on the date the AOS application is approved, the foreign spouse will be a conditional permanent resident for two years. Within the 90 days before the two years is up, the spouses must jointly file a petition to remove the conditions. The petitioning spouses must be able to demonstrate the continuation of the marriage in good faith throughout the two years in order to secure removal of the conditions. A waiver may be possible (1) if the U.S. citizen spouse has died, (2) if the marriage was entered into in good faith but the foreign spouse was battered or subject to extreme cruelty by their spouse, (3) if the marriage was entered into in good faith but the marriage ended in divorce or was annulled, or (4) if the conditional resident would face "extreme hardship," a standard which should not be taken lightly.

During the preparation of the application filings, we will ask both spouses to provide biographical information and documents. Required documents may include copies of passports, birth certificates, marriage certificates, divorce decrees, financial documents, and U.S. tax returns, among others. It will also be necessary for the foreign spouse to submit the results of a medical examination conducted by a physician enrolled by USCIS as a "Civil Surgeon" authorized to administer immigration physicals. USCIS maintains a Civil Surgeon Locator on its website.

USCIS Processing

USCIS processing procedures change with some frequency, but in all cases there are at least 4 steps to marriage-based AOS: (1) filing of the application package; (2) collection of biometrics (photograph and fingerprints); (3) USCIS processing including security checks and preliminary review; and (4) an interview of both spouses in a USCIS Field Office. After the application is filed and accepted, USCIS will send receipt notices assigning receipt numbers to the different elements of the proceeding. Both counsel and spouses are usually sent copies. It may take a month or more before the receipt notices arrive.

Sometime later, the foreign spouse will receive a notice to appear for biometrics at a USCIS Application Support Center. It is very important to appear for biometrics as stated in the notice.

The process also involves an FBI name and fingerprint check based on information submitted, which USCIS performs automatically. This can frequently be cause for delay, unfortunately. Moreover, processing times vary widely among USCIS offices – a proceeding which takes six month in one city may take more than a year in others. Unfortunately, the determination of the adjudicating office is a strict function of where the petitioner lives.

It may be several months before USCIS conducts a substantive review of the filings. This review may result in a request for additional evidence to support or clarify a point of concern. USCIS is required to direct these requests to the attorney representing the spouses, but mailing errors do occur. If you receive such a request in the mail, please bring it to our attention.


If there are no requests for evidence, or upon their resolution, and after initial security checks are submitted, the local USCIS office will schedule an interview which both spouses must attend. It is highly advisable to work to the USCIS schedule. Rescheduling an interview can create significant delays. Before the interview, we will go over the facts of your case, obtain updated documents if necessary, go over the subjects likely to arise, review the documents and evidence you should bring to the interview, and schedule a time and place to meet beforehand.

The interview itself may last only a few minutes. Your attorney will be in the meeting, but will likely participate only if required to ensure that the hearing officer remains on the right track, to argue points of law or fact, and to put on the record concerns with regard to the officer's procedures or conclusions. In most cases, the officer will state at the end of the interview what his or her recommendation on the case will be. Although the officer may be able to approve the petition and application at the interview, this has become a less common practice.


After the interview, and on completion of all FBI checks and the submission of all required evidence, the District USCIS Office will notify the applicant of a decision by letter. If the foreign spouse urgently needs proof of their permanent residence, they will need to schedule an “infopass” appointment with the District USCIS Office to receive an "ADIT" passport stamp that serves as evidence of permanent resident status and employment authorization, and can be used to gain readmission into the U.S. upon return from trips abroad lasting less than one year. Depending on the backlog, a form I-551 Permanent Resident Identification Card ("Green Card") will be mailed to the foreign-born spouse a few weeks or months later. Let us know if it is inordinately delayed.

Employment Authorization & Advance Parole While Application is Pending

Given that the AOS process can be time consuming, while the AOS application is pending, the law permits the foreign spouse to obtain an Employment Authorization Document (EAD) and to secure a travel document (Advance Parole) permitting foreign travel and return without disruption of the adjustment proceeding. Both are valuable benefits which must be used with care, and both require application and grant before the benefit can take effect. In many cases, EAD and Advance Parole applications are routinely filed with the adjustment application package, and are granted within a few months, often faster.

An EAD is required before the foreign spouse may accept employment, unless they were previously employment authorized by virtue of ongoing nonimmigrant status. The AOS based EAD is granted for one year, and continued employment requires that the EAD be kept current. It is best to apply for an EAD renewal 90 days before expiration to prevent gaps in employment authorization.

The Advance Parole is a valuable tool which allows the foreign spouse to travel internationally without abandoning their application for AOS. It can be particularly useful where an applicant travels frequently on business. However, they can be tricky to use in practice. Also, it is critically important to remember that USCIS rules deem an AOS proceeding to be abandoned if the applicant departs the U.S. to any foreign destination without having a granted and current advance parole in hand. (The intent is to prevent an applicant from maintaining an AOS proceeding while seeking consular immigrant processing at the same time, among other reasons.) Moreover, the AOS applicant must leave and return on the same parole document. Under current USCIS policy, the applicant may not leave on one valid parole and then return on a second, renewed parole, even if out of the country for only a few days. If an Advance Parole is about to expire, a renewal application still pending, and travel abroad is urgent, a parole renewal may be available by applying in person at a District Office. Note also that, on return, the foreign-spouse will be in parole status, which does not provide some of the legal rights available to persons in nonimmigrant status. Although not a major concern in most cases, let us know if you have questions on this point.

Affidavit of Support

The immigration laws also require that the U.S. citizen spouse execute an affidavit of support that commits to reimbursing federal, state, and local governments for the cost of any public assistance benefits that the foreign spouse might receive during the first ten years after grant of permanent resident status. It is a binding contract that applies whether or not the marriage is maintained through the full ten years. The affidavit requires demonstration that the U.S. citizen spouse's household income is, in most cases, at least 125{877c034753eacee7259c3c97ae2e02ad1f8f94c95ed6455a0455c04073043e02} of the federal poverty income guidelines, which change annually. A U.S. citizen spouse whose income does not meet this threshold may include the income of others in the household, in some cases including the income of the foreign spouse. If household income is still insufficient, the spouse may qualify on the basis of savings, property owned, or with the participation of a joint sponsor.

Preserving Permanent Residence

Finally, keep in mind that Permanent Resident status is not necessarily permanent. In addition to conviction of certain crimes, and other grounds, it can be lost by engaging in conduct inconsistent with an intent to reside permanently in the US. This may include purchasing a primary residence abroad, taking a job abroad without a predetermined end date, or traveling outside the U.S. for more than a year without first obtaining a re-entry permit, among others. There is no bright-line test and you will receive no letter from USCIS. Often, a Permanent Resident does not discover there is a problem until refused entry to the U.S. at an airport inspection. If, after adjusting, you are expecting to travel abroad frequently or for extended periods, please let us know so that we can discuss measures you can take to help avoid losing Permanent Resident status and to minimize the time required to qualify for citizenship by naturalization.

Please let us know if you have any questions and we look forward to working with you.