If I am a green card holder, can my spouse stay in the United States if I file for adjustment of status for them?
Hi. I'm Jim Hacking, Immigration Lawyer practicing law throughout the United States out of our office here in St. Louis, Missouri. Every now and then, we come across a case where there's a lawful permitted resident, let's call him Juan, living in the United States.
Let's say also that his spouse, Maria, happens to be in the United States, let's say, on the student visa, so she is not a lawful permitted resident. She is just the spouse of a lawful permitted resident, and the question is, what type of status does Maria have to maintain in order to be able to stay in the United States.
Here's the general rule. If you want to adjust your status, you need to be in valid immigration status at the time of your adjustment. In a situation like this, Maria would need to maintain her student status throughout the time the green card case is pending. The reason for this is that there's a backlog on the processing of green card cases for the spouses of green card holders.
I know that sounds a little bit confusing but, basically, there are a limit on the number of green cards that are available in all kinds of green card categories, and that includes green cards for the spouses of green card holders. That is lawful permanent residences, husbands or wives.
That is the kind of thing that can screw people up because they assume that, once they file for the green card based on their marriage to a green card holder, that that allows them to stay in the United States. Some of this confusion comes from the fact that the spouse of a U.S. citizen who is out of status is allowed to adjust status.
The rules are different when you're married to a U.S. citizen so, if Juan were already a U.S. citizen, then if Maria were out of status at the time that they applied for adjustment or at the time of her interview, that would be forgiven, the fact that she was out of status, but that rule only applies to U.S. citizens. That rule does not apply to spouses of lawful permanent residents.
That's really where the confusion comes in. If you are married to a green card holder and if you want to adjust your status, you need to make sure that you find some valid status to be in and that you maintain that status both at the time that you file and at the time of your actual adjustment. In a lot of situations, that can be up to a year and a half or two years or even longer, depending on how many people are in line ahead of you.
This can be a really confusing issue. We've seen people screw it up. We've seen the immigration service screw it up so, if you have questions about how this works or about how we could help you with that, how you can go about maintaining your status, be sure to give us a call at 314-961-8200, or you can email us at [email protected]
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Thanks a lot, and have a great day.
