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September 13, 2010: Can This Person Adjust Without Cooperation of Spouse?

Can This Person Adjust Without Cooperation of Spouse?

I am a F-1 student in Florida married to a U.S. citizen for a year now. I want to adjust my status, but I am unable to locate my wife. My question is can I go ahead and adjust my status without her on the grounds that I cannot find her or that she left me? Is there a form I fill out to do it on my own?
— Anonymous

Unless you left out some important facts, if you want to file for adjustment of status based on your marriage to your United States citizen wife, you will have to find her first. The immigration laws do not allow a person to adjust their status without having an underlying visa petition.

In your situation, your United States citizen spouse will have to file a visa petition on your behalf and then you will be eligible to adjust your status to lawful permanent resident. Your wife will also have to submit an affidavit of support. Then you will have to prove to the United States Citizenship and Immigration Service (USCIS) that you had a bona fide (real) marriage at its inception.

If you cannot prove that, the USCIS will claim that you married her to circumvent the immigration laws and that your marriage was for the primary purpose of obtaining immigration benefit. Even if your marriage was bona fide at its inception but it is not viable at this moment, the USCIS will take the position that the marriage cannot convey an immigration benefit. Since you are presently in F-1 student status, another option for you may be an H-1B visa once you graduate. You would need an offer of employment from a U.S. employer and proof that you have at least a bachelor’s degree or its equivalent.

It may be wise for you to consult with an experienced immigration attorney who can review your documentation and explain the immigration laws as they relate to you in more detail. Good luck!

Michael Shane and Evan Shane, Immigration Attorneys

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