The process for filing a green card application for your spouse when they are currently living in the US is different from the process when they are living overseas (Adjustment of Status vs Consular Processing). When your spouse is in the US and you file the application it is called “Adjustment of Status”. The immigrant spouse is adjusting from a nonimmigrant status such as B-1, L-1, TN, etc. to an immigrant status. When the spouse is living overseas and you apply for a green card, the process is called “Consular Processing”. In this case the spouse will process a part of their application with the US Embassy or Consulate in their country. Let’s take a look at how the process works for Adjustment of Status versus Consular Processing.
Adjustment of Status
Before filing an Adjustment of Status application for your spouse in the US you should determine whether your spouse is actually eligible to file the application without ending up in deportation or removal proceedings. If your spouse entered the US without a visa (we call this “entry without inspection”) or has a criminal history, they should seek the advice of an immigration attorney before filing anything with the immigration service. There are also other things that can cause the case to get denied. For example, claiming to be a US citizen when they are not. But let’s assume for our purposes that your spouse has not done anything to jeopardize the green card application.
The first step in the process is to file the relevant applications with USCIS. After USCIS receives your applications and filing fees, they will send you receipt notices which verify they have received the application, fees were paid and provide you with a receipt number.
Within a few weeks of receiving your receipts your spouse will receive a notice to appear at a USCIS Application Support Center to have their picture and fingerprints taken. USCIS uses this information to run a background check on your spouse.
If you filled out your applications correctly and USCIS doesn’t need any additional information from you or your spouse, you will eventually receive an appointment notice from USCIS to appear for an interview at your local USCIS office. Currently, in Atlanta, it is taking about four to six months to receive the interview notice. In most cases, both the US citizen and the immigrant spouse must appear at the interview. In my experience, the marriage interviews are about fifteen to thirty minutes in length. If the interview is significantly longer than that, the immigration officer probably has some issues with your case.
If everything goes well at the interview, your spouse will receive either a conditional green card valid for two years or an unrestricted green card valid for ten years. If your marriage is less than two years old at the time of your interview the immigrant spouse receives the conditional green card. If the marriage is over two years old at the time of the interview the immigrant spouse will receive the ten year green card.
With consular processing you should first determine if your immigrant spouse has ever lived in the US prior to filing the application. If so, you need to make sure that they didn’t do anything to violate their status when they were in the US. Certain types of violations, like overstaying a visa for a lengthy period could make the immigrant spouse ineligible to enter the US for three or ten years. If they have a deportation order or a criminal history, they could also be barred from entering the US for significant periods of time or even permanently. If you think your spouse has issues in their case, it would be wise to review the matter with an immigration attorney.
Ok, so let’s assume that there are no major immigration issues with the immigrant spouse. In that case, you will file an initial set of applications with USCIS. USCIS will issue a receipt notice for the immigrant petition which will verify they have received the application, fees were paid and provide you with a receipt number.
If USCIS approves the initial application, they will then forward the application to the National Visa Center (NVC) which is a part of the US State Department. The NVC will acknowledge receipt of the USCIS application and then have you fill out an additional application for the State Department as well as an affidavit of support. You will also have to pay some additional fees online to NVC before they will process these applications for you.
Once NVC has all of the forms and supporting documents from you, they will forward all of the relevant documents to the appropriate US Embassy or Consulate in your spouse’s country. The embassy/consulate will then send additional instructions to your immigrant spouse regarding what to bring to their interview and how to obtain a medical exam. They will also assign a date and time for the immigrant spouse to attend an interview at the embassy/consulate. In most cases, only the immigrant spouse is allowed at the interview. The US citizen spouse is often discouraged, or even prohibited, from waiting at the embassy/consulate while the interview is being conducted.
After the interview is completed the immigrant is told whether the application has been approved and if approved they are provided with a sealed packet to provide to the US customs officer upon their arrival in the US. A few weeks after arrival in the US the immigrant is issued either a conditional green card valid for two years or an unrestricted green card valid for ten years. If your marriage is less than two years old at the time of your interview the immigrant spouse receives the conditional green card. If the marriage is over two years old at the time of the interview the immigrant spouse will receive the ten year green card.
There is a lot more detail involved in both Adjustment of Status and Consular Processing, but hopefully the description above gives you a general overview of how the process works for each type of application and some basic difference between the two. I think the biggest surprise for my clients is when I tell them that the US citizen is normally not allowed to appear for the interview when Consular Processing.
If you would like help with either process feel free to use the contact us form on this page to schedule a consultation. You can also set up an in person or Skype consultation with attorney Rahim Dhanani by calling (404) 593-0434.