November 30, 2009: Common Issues in a Marriage Based Adjustment of Status Application
Common Issues in a Marriage Based Adjustment of Status Application
I am a 26 years old U.S. citizen by birth. My wife is 27 years old, born in Germany and is a German Citizen. I met my wife in January, 2007 while she was in the U.S. on a student visa. We spent about 5 months together at that time, her student visa expired in June, 2007, so she left for Germany before the expiration of her visa. Since then she and I have both visited each other on numerous occasions on visitor visas. She visited me in the U.S. in May, 2009. During that visit she and I got married. She left for Germany before her visitors visa expired and has continued to visit me on a visitors visa. I am currently in New York and she has been living with me since she arrived on her most recent visitors visa October 17th, 2009. Her current visitors visa expires January 17th, 2010. We are going to submit the application package for her green card through marriage. Some questions:
1. Are we unlikely to receive an approval of the green card application before her visitors visa expires January 17, 2010?
2. Does she have to leave the U.S. and go back to Germany??
3. Or, if she stays, will she be held accountable and possibly have a penalty for an overstay??
4. Or once we apply is she REQUIRED to stay until there is a result of the application?
5. She has a I-94 Green visitors visa, is it even LEGAL for her to apply for a green card through marriage with that visa?
You raise some very interesting questions that are common to many marriage cases. Assuming you married your wife because you love her (which it appears was your reason for marriage) and not for the primary purpose of helping her obtain a green card and assuming she is otherwise qualified, your wife can apply for a green card through the process called adjustment of status. Note that your wife may be questioned about her intent when she last entered the United States using the visitor’s visa.
Generally, admission as a visitor indicates that the person intends to stay only temporarily. In some instances, the person may intend to stay only temporarily but once in the United States, a person may change their mind and want to stay permanently. It appears that your wife, with her numerous temporary visits, may have initially entered with the intent to return but changed her mind this time and wants to stay permanently. On another note, the expiration date on the I-94 card that she received is the date that controls her authorized period of stay, not the date her visa expires in her passport.
To answer your questions:
1. Assuming you properly file the adjustment of status package with the United States Citizenship and Immigration Services (USCIS), you should receive receipts notices in approximately 7 to 10 business days. Although adjustment of status processing times differ around the country, it should take anywhere between 2 to 6 months to be scheduled for an adjustment of status interview.
2. The adjustment of status process generally allows the applicant to remain in the United States while the application remains pending. If she leaves the United States while the application is pending, she must travel with an advance parole document. If she travels without an advance parole document, then she will have abandoned her application for residency.
3. Assuming her green card application is approved, there should not be any negative ramifications for staying beyond the time allowed on the I-94 card. Other ramifications may stem from her intent upon entry in visitor status as discussed above.
4. She is not required to stay in the United States. She can travel abroad so long as she travels with the advance parole document.
5. The green I-94 cards are usually issued to persons traveling under the provisions of the visa waiver program. Adjustment of status after admission with a visa waiver is acceptable where it is based on marriage to a United States citizen. As you can see, there are many issues and it may be wise for you to consult with an experienced immigration attorney to obtain specific answers to your questions.
Michael Shane and Evan Shane, Immigration Attorneys