How to adjust immigration status through marriage

How to adjust immigration status through marriageWritten by: David A. Harston – Attorney licensed in Colorado

As the saying goes, “love knows no boundaries.” The law, however, is all about boundaries. Filing paperwork for your spouse to join you here in the United States can be a daunting task. Here is a step-by-step guide to follow if your spouse is already here in the U.S. and entered legally.

Get Married, If You Are Not Already

Until there is a “qualifying relationship”, you cannot file the appropriate residency paperwork for your spouse. Your marriage must be “bona fide” and not one simple to assist someone in becoming a resident of the United States. Marriage fraud is a federal crime and will result in significant jail time and penalities for BOTH parties.

Review and Confirm Eligibility

Before preparing and filing any paperwork with U.S. Immigration (U.S.Citizenship & Immigration Services), you must verify that you are eligible to file for your spouse and that your spouse is eligible for U.S. permanent residency. Determining eligibility and admissibility to the U.S. is critical PRIOR TO filing any paperwork with USCIS. Issues such as prior or current immigration violations, crimes, certain political activities, and health problems can affect eligibility and must be analyzed prior to filing. In addition, the U.S. citizen spouse must meet certain income requirements for sponsorship.

Gather the Required Paperwork

If eligibility is confirmed, gather the required paperwork and prepare copies for filing. USCIS will require proof of U.S. citizenship (U.S. passport; birth certificate; naturalization certificate), your spouse’s birth certificate, all immigration documents (including passports, visas, I-94 card and all other immigration documents), marriage certificate, documentation of all prior marriages (including divorce decrees and for women, prior marriage certificates), U.S. tax return for the most recent year, proof of employment for the U.S. citizen, medical examination, passport photographs of the U.S. citizen and spouse, proof of bona fide marriage to the extent available (birth certificates for children, joint accounts, joint lease/mortgage, joint insurance, photographs, affidavits, etc). See for current requirements.

Draft the Required Forms and Review Carefully for Accuracy

If your spouse is already here in the United States and entered legally, the forms include the I-130 Immigrant Petition, G-325 Biographic Data Forms, I-485 Application to Adjust Status, I-864 Affidavit of Support, I-765 Application for Work Authorization, and the I-131 Application for Advance Parole Travel Permission. If your spouse did not enter legally, is overseas or has other admissibility issues, this legal guide does not apply to your situation. Also note a designated civil surgeon will need to perform a medical exam for your foreign national spouse. See to download the forms. Review the forms several times for accuracy.

Sign Forms, Prepare Fees, Assemble Filing Package, Copy and File

Make sure all forms are signed in the appropriate places by the appropriate parties. Prepare the appropriate fees and payment for the filing at the correct USCIS office. Assemble the filing package, paying attention to the instructions on the USCIS website. Make a complete and legible copy of the filing package for your records. DO NOT send any original documents to USCIS. Confirm the fees and filing location using the USCIS website – note that filing locations and fees change frequently and the USICS website is not always kept up to date. At times, the USCIS website also contains contradicting or confusion information or instructions. If so, you should consult an experience immigration attorney to confirm procedures and requirements. File the package using a courier service such as FedEx or UPS or file using USPS Express Mail so you can track the package. Verify with the carrier that the package arrived.

Confirm Receipt and Complete Biometrics

USCIS will send receipt notices for the forms (I-130, I-485, I-765, and I-131) when the package arrives and the case is “feed-in.” Missing documentation, unsigned forms, improper fees, etc, will result in a rejection of the filing and the package will be returned to you. In some cases, USCIS will issue a Request for Initial Evidence or a Request for Evidence for missing information or documentation. Receipt notices from USCIS typically take anywhere from one to four weeks to arrive. In addition, USCIS will issue a biometric notice to complete the required fingerprints and to obtain a digital photograph. The biometics notice generally takes one to three months to arrive. Attend the biometics appointment.

Prepare for USCIS Interview and Attend Interview Together

While the paperwork is pending, continue to gather and copy evidence of your bona fide marriage (see Step 3). This paperwork will be critical at the interview. If you change your address while the paperwork is pending, you must notify USCIS within ten days of your move using form AR-11 and notifying USCIS with respect to each pending application (I-130, I-485, I-765, and I-131). When notified, attend USCIS interview together. Note that USCIS may separate you and your spouse at the interview.

To be eligible for naturalization under section 319(a) of the INA, you must:

  • Be at least 18 when you submit Form N-400, Application for Naturalization;
  • Be a lawfully admitted permanent resident of the United States for at least three years immediately before the date you file Form N-400;
  • Have been living in marital union with your U.S. citizen spouse during the three years immediately before the date you file your application and while we adjudicate your application;
  • Have lived for at least three months in a state or USCIS district having jurisdiction over your place of residence;
  • Have continuous residence in the United States as a lawful permanent resident for at least three years immediately before the date you file your application;
  • Reside continuously within the United States from the date you filed your application until the date you naturalize;
  • Be physically present in the United States for at least 18 months out of the three years immediately before the date you file your application;
  • Be able to read, write and speak English and have knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States (also known as civics); and
  • Be a person of good moral character, attached to the principles of the Constitution of the United States, and well-disposed to the good order and happiness of the United States for at least three years immediately before the date you file Form N-400 and until you take the Oath of Allegiance.

For information relating to spouses of military members, see our Citizenship for Military Family Members page.

For information about becoming a lawful permanent resident (LPR) or petitioning for family members, please visit our Green Card or Family pages.

Generally, if your spouse is a U.S. citizen who is employed by the U.S. government, including the military or another qualifying employer, and your spouse is scheduled to be stationed abroad for at least one year at the time you file your Form N-400, you may be eligible for naturalization under Section 319(b) of the INA. Qualifying employers can include:

  • Certain American institutions of research;
  • American firms or corporations engaged in the development of foreign trade and commerce;
  • Certain public international organizations; and
  • Certain religious denominations or interdenominational mission organizations.

In general, at the time of your naturalization interview and ceremony, you must be present in the United States under lawful admission for permanent residence and you must meet of all of the requirements listed above, with the following exceptions:

  • No specific period as an LPR is required (but you must have been lawfully admitted to the United States for permanent residence);
  • No specific period of continuous residence or physical presence in the United States is required; and
  • No specific period of marital union is required; however, you and your U.S. citizen spouse must be in a valid marriage from the time you file your Form N-400 until the time you naturalize.

You must also establish that you will reside outside the United States with your citizen spouse immediately after naturalization and that you intend to reside in the United States immediately after your spouse’s employment outside the United States ends.

One of the quickest and most common ways for a foreign national, who is currently in the U.S. and who entered lawfully, to obtain lawful permanent resident status is through marriage to a U.S. Citizen, in a process called Adjustment of Status. As with much of Immigration Law, marriage-based adjustment of status can be quite complicated.

The process begins with U.S. Citizenship and Immigration form I-130, Petition for Alien Relative. The same petition can be used for a parent, child or sibling. The petition is necessary to establish the relationship between the U.S. Citizen and the relative, in this case, the foreign national spouse. In addition to form I-130, the U.S. Citizen and foreign national spouse must complete form I-130A which provides general biographical information. Immigration Law requires that the U.S. Citizen-petitioner prove that the marriage was valid at the time it was performed, that the marital relationship is bona fide (that is, actual and legitimate), and that it was not entered into solely for procuring an immigration benefit.

The immigration laws contain safeguards to prevent marriage fraud. The mere existence of a marriage certificate will not be enough to establish a bona fide marital relationship. A strong filing will also include items like signed affidavits from friends and relatives attesting to the authenticity of the relationship, love letters, holiday cards and photos. In cases where the foreign national is already in the United States, it may be expected that the couple live together. The United States Customs and Immigration Service (USCIS) will expect to see comingling of funds through joint bank accounts, joint tax filings, joint utility bills and joint leases or mortgages. The birth certificate of children born into the marriage will also be strong evidence of a bona fide relationship.

If the foreign national spouse of a U.S. Citizen is in the U.S. , under most circumstances , the couple can concurrently file the I-130 Petition for Alien Relative and the I-485 Adjustment of Status to the of a Lawful Permanent Resident. The U.S Citizen and his spouse generally need to file the following forms along with supplemental evidence:

  • Form I-130
  • Form I-130A
  • Form I-485
  • Form I-864, Affidavit of Support
  • Form I-131 Application for Travel Document
  • Form I-765 Application for Employment Authorization and
  • I-693 Report of Medical Examination and Vaccination Record which can be obtained from a USCIS approved Civil Surgeon.

Upon receipt of these documents, USCIS will issue a receipt notice, followed by an ACS appointment notice in order to collect biometrics for the foreign national. The biometrics will be used to conduct a background check on the foreign national before any work authorization or adjustment of status can be granted.

The final step of the marriage-based adjustment of status application is the adjustment of status interview. At this interview a USCIS Officer will interview the couple, go over any questions or concerns regarding the application packet and determine whether or not the couple’s marriage is bona fide. If the officer believes that the foreign national is admissible and that the marriage is bona fide the officer may grant the adjustment of status application right there by stamping the foreign national’s valid passport with an I-551 stamp indicating that they are a lawful permanent resident, or more commonly, the officer will decide at a later date (usually within 30 days), and the I-551 Lawful Permanent Resident Card or “green card” will be sent to the foreign national by mail.

Certain foreign nationals who are physically present in the U.S. may be able to complete the marriage-based immigration process without leaving the country. This process is referred to as adjustment of status (i.e., adjusting to status as lawful permanent resident). For those who qualify, adjustment is typically speedier than consular processing, and avoids separation of the couple.

The paperwork for adjustment of status is completed in a single stage, and is thus commonly referred to by immigration practitioners as a one-step. As with consular processing, as described above, the U.S. spouse files an I-130 Petition as the “invitation” to the foreign spouse. But unlike consular processing the foreign spouse is not required to wait for approval of the I-130 petition. Instead, the foreign spouse concurrently files a Form I-485 Application to Adjust status, and the two submissions are adjudicated simultaneously. The Form I-864 financial support contract is also currently filed with the application packet.

As with consular processing, a central USCIS facility reviews the submission for documentary completion and will issue a Request for Evidence if needed. Once the file is complete, the case will be forwarded the USCIS field office having jurisdiction over the applicant. USCIS field offices are located in most major cities throughout the United States.

The time between initial filing and interview has ebbed and flowed, and also varies between USCIS field offices due to interview backlogs. At the time of writing in the author’s jurisdiction of Seattle, Washington, interviews could be expected approximately six to eight months from filing.

What gets filed in an adjustment of status case?

While the application is pending, may the foreign spouse work?

In some scenarios the spouse may already be in the United States with a status that authorizes work. But if not, the spouse must apply for work authorization concurrently with the adjustment of status application. In such cases work authorization should be issued within three months of filing.

Obtaining United States citizenship through marriage can take several years, but the steps are clearly laid out by United States Citizenship and Immigration Services.

by Michelle Kaminsky, Esq.
updated October 12, 2021 · 3 min read

How to adjust immigration status through marriage

Naturalization is the process by which a non-citizen becomes the citizen of a country. One way to get citizenship in the United States is to marry a U.S. citizen. However, it’s not as easy as filling out a couple of forms.

It’s not a fast process, and the outcome isn’t guaranteed, and there are lots of requirements to fulfill along the way. With a lot of attention to detail and a little patience, you can attain citizenship in the U.S.

What follows are the basic steps to obtaining U.S. citizenship through marriage, which generally include first becoming a permanent resident (green card holder) and then applying for citizenship.

Establish Permanent Residency

Establishing permanent residency is the first step to acquiring U.S. citizenship by marriage. The Permanent Resident Card, also known as Form I-551 or a “green card,” provides proof that you are a permanent resident of the United States and is granted by U.S. Citizenship and Immigration Services (USCIS).

Immigration Through Marriage to a U.S. Citizen

To enter the U.S. legally if you are married to a U.S citizen, your spouse should complete Form I-130 , Petition for Alien Relative, and all required documentation and filing fee to obtain the proper visa permission to immigrate to the U.S.

Green Card Through Marriage

After your arrival, you should file Form I-485, Application to Register Permanent Residence or Adjust Status, and pay the filing fee to adjust your status to that of a permanent resident in the United States. If you are already in the U.S. legally, you should file both forms at the same time.

The USCIS will call in you and your spouse for an interview, and then, if things go well and if you have been married for less than two years at the time resident status is granted, you will receive permanent resident status on a conditional basis.

This can be removed by submitting a joint petition, Form I-751, Petition to Remove Conditions on Residence, within the 90-day period before the expiration date of conditional residence.

Applying for Citizenship

Now, the big question arises: “When can I apply for U.S. citizenship?”

The general answer is that you must be a permanent resident (green card holder) for at least three years and have been living in marital union with your U.S. citizen-spouse during that time. You need to file citizenship Form N-400, Application for Naturalization, along with requested documentation and appropriate fee in order to apply for citizenship.

There are some further eligibility requirements under Section 319(a) of the Immigration and National Act (INA), however, and, they include the following:

  • Be 18 or older
  • Have lived within the state or USCIS district with jurisdiction over your place of residence for at least three months prior to filing of application
  • Reside continuously within the U.S. from the date of your naturalization application until the time of naturalization
  • Be physically present in the U.S. for at least 18 months out of the 3 years immediately preceding the filing of your application
  • Be able to read, write, and speak English and have knowledge and an understanding of U.S. history and government
  • Be a person of good moral character, attached to the principles of the U.S. Constitution, and “well disposed to the good order and happiness of the United States during all relevant periods under the law.”

How long it will take your application to make it through the naturalization process depends largely on where you’re located. The USCIS Local Field Office closest to you will contact you for an interview and final review of your application. You can check processing times at the USCIS website. If you are approved, you will take the oath of allegiance—in some locations even the same day.

Final Considerations on Getting U.S. Citizenship Through Marriage

Remember that the final authority regarding all immigration and citizenship issues lies with the USCIS, so be sure to consult the USCIS website for further information, especially the USCIS Policy Manual Citizenship and Naturalization Guidance.

Moreover, if you have any issues that make your immigration and citizenship situation anything less than run-of-the-mill, you should seek out the advice of an immigration attorney.

How to adjust immigration status through marriage

As you prepare your adjustment of status application, you might begin to notice that the stack of documents can get particularly large. For applicants filing the Form I-130 concurrently with Form I-485, Application to Adjust Status, it might even be overwhelming.

The documents can’t be thrown in an envelope and sent to USCIS. They must be presented in a way that USCIS can easily understand your intentions and find your supporting documents. Assembling your adjustment of status package may take some planning.

What Not to Do

First, it may be easiest to explain what not to do when assembling your adjustment of status package. Do not use binders or folders that USCIS cannot easily disassemble. Do not use heavy-duty staples; instead use fasteners or heavy clips.

Assembling the Adjustment Package

The golden rules of assembling your package might be: Make it easy. Keep it organized.

There is no single right way to assemble an adjustment of status package. If you are able to present a package that is well organized and easy to use, USCIS will be able to intake your case more quickly. There will be less chance of lost documents and Request for Evidence (RFE).

How to adjust immigration status through marriage

Many law firms use a two-prong folder or ACCO fastener to organize applications and supporting documents. The documents stay in place, are protected, and can be easily disassembled by USCIS. In order to do this correctly, you’ll need to purchase or have access to a two-hole punch. That’s not necessary.

You may use a combination of paper clips and binder clips to secure each group of documents.

Adjustment of status is the process of changing from a nonimmigrant immigration status (e.g. student, tourist, etc.) to permanent residence (green card holder). U.S. immigration law allows a temporary visitor to change status to a permanent resident if the individual lawfully entered the United States and meets certain requirements. Adjustment of status is one of two paths for obtaining an immigrant visa (green card) to the United States. If the applicant is not eligible for adjustment, he or she must use consular processing. Both consular processing and adjustment of status may be available options if the applicant is already in the U.S.

The following describes in general terms the process for obtaining a family-based green card through adjustment of status. In this process, the petitioner is a U.S. citizen or lawful permanent resident, and the beneficiary is the foreign national seeking a green card. If you’re ready to get started, skip to how CitizenPath can help.

Establish Eligibility to Apply for a Green Card

Immediate Relative Categories
Family Preference Categories

Determine Eligibility for Adjustment of Status

To file an adjustment of status application, the intending immigrant must meet three fundamental requirements. Eligibility to adjust status requires that the applicant must:

Be physically present inside the United States;
Have made a lawful entry into the United States; and
Have an immigrant visa immediately available to you.

It’s also important that the intending immigrant maintain eligibility throughout the adjustment process. Changes in circumstances can affect the success of an adjustment application. Only a very limited group of people can adjust status. That’s why adjustment is generally only used by some immediate relatives, spouses that entered as K-1 fiancés, asylees, refugees, or those who arrived on an employment visa (e.g. H-1B) and the employer sponsored them for a green card.

File Application to Adjust Status

  • I-485, Application to Register Permanent Residence or Adjust Status
  • I-130, Petition for Alien Relative
  • I-130A, Biographic Information (if relative is a spouse)
  • I-864, Affidavit of Support
  • I-693, Report of Medical Examination and Vaccination Record
  • I-765, Application for Employment Authorization (optional)
  • I-131, Application for Travel Document (optional)

How to adjust immigration status through marriage

Attend Adjustment Appointments

After you file your application, USCIS will mail you an appointment notice for a biometric screening. This is a relatively quick appointment at a USCIS Application Support Center to obtain your photo, fingerprints and signature. USCIS uses the biometric data to conduct a mandatory criminal background check.

Several months later, USCIS will likely require you to attend an adjustment interview. In many cases, the relative that filed Form I-130 will also be required to attend. USCIS has the ability to waive an interview for certain individuals. They will notify you of the time, date, and location for an interview. USCIS uses the adjustment of status interview to confirm the information you and your petitioner have provided on the petition and the adjustment application. It’s also an opportunity for them to see if circumstances have changed that may make you ineligible. Generally, this is a quick interview that only lasts 20 to 30 minutes.

The entire adjustment process may take 8 to 14 months for most applicants. For a more detailed look at what happens and each step, review the Form I-485 processing time line.

Receive Your Green Card

How to adjust immigration status through marriage

In rare cases, USCIS may require additional information after an interview or even schedule a second interview to review your case in more detail.

After all paperwork has been received, interviews conducted (if necessary), security checks completed, and other eligibility requirements reviewed, your case will be ready for a decision by a USCIS officer.

In all cases, you will be notified of the decision in writing. If USCIS grants you permanent residence, they will mail your green card to your address on record.

Pros and Cons of Adjustment of Status

Although the adjustment of status process typically takes longer than consular processing, it has its advantages. The adjustment of status timeline is generally 8 to 14 months for family-based applications (and often longer for other application types).

However, the most significant advantage to adjusting status is that the intending immigrant may remain in the United States with family during the process. It avoids the travel expense and prolonged separation between family members. So even though it may take slightly longer than consular processing, you can live, work and even travel outside the U.S. (Additional authorization must be obtained for employment and travel abroad by I-485 applicants.)

If USCIS denies Form I-485 to adjust status, the applicant may challenge the denial through the administrative and/or judicial appellate processes. Consular processing decisions for a green card are final. For a more detailed analysis of the advantages and disadvantages of adjusting status versus consular processing, read this comparison.

An alien who entered the United States “with inspection” may, under some circumstances, adjust his or her status and become a Permanent Resident of the United States without leaving and reentering the United States. One of these situations is when the alien marries a United States citizen.

The process for adjusting the status of an alien lawfully present in the United States who marries a United States citizen requires proof of several crucial factors. We must prove that the alien entered the United States “with inspection,” meaning with a valid visa or visa waiver. We must prove the identity of each party, and we must prove that the person marrying the alien is in fact a United States citizen either through birth or naturalization. We must prove that the alien and the citizen are legally married. This includes proving that any prior marriage is entered into by either of the party’s were dissolved at the time of the present marriage, in addition to proving that the present marriage is valid.

Even though in this scenario the intending alien is present in the United States and does not require to leaving the United States in order to adjust his or her status, USCIS looks at this process as if the alien were outside the Unites States. For this reason, in addition to filing the appropriate petitions to obtain permanent resident status, we must also file for a Spousal Visa. Part of the requirement for a Spousal Visa application is that the applicant show that the intending immigrant will have sufficient financial resources to meet his or her needs while in the United States and unable to lawfully work. In order to satisfy this requirement we need to submit at least one affidavit of support in addition to tax returns and other financial documents proving that the sponsor, in this case the spouse, has sufficient income to support the alien. If the sponsor does not have sufficient income to support the alien, the sponsor may ask another United States citizen or permanent resident to agree to provide financial support for the alien if needed.

In addition, we establish that the applying alien does not suffer from any health-related concerns that would bar him or her from entering the United States. Specifically, we need to submit a medical examination form completed and signed by a doctor specifically designated by USCIS as a “designated civil surgeon”.

In most case, we also apply for employment authorization to allow the alien to work while the application for Permanent Residence is pending.

The intending alien will be required to travel to Philadelphia in order to have his or her photographs and fingerprints taken. This process is called “biometrics.” As with all USCIS appointments, it is very important that the alien be available for this appointment when it is scheduled. It is possible to reschedule appointments in the events of emergency, but doing so tends to add a substantial amount of waiting time to the process, and invites higher possibility of a mistake on the part of USCIS.

The final step before Permanent Resident status is granted is an interview of the applicant and beneficiary, conducted by USCIS staff at the closest USCIS Field Office. The purpose of this interview is to determine to the satisfaction of the USCIS officer, that the marriage is genuine or “bona fide” and was not entered into for immigration purposes. Typically, the immigration officer will interview both parties together, and may speak to each party individually with the other party out of the room. The immigration officer will ask each party questions about the other intended to establish whether or not they really know each other and whether or not their marriage is real.

This is an interview, not a hearing. You may have your attorney present, but you do not need to have an attorney at this interview. Because this is an interview and not a hearing, your attorney cannot answer for you, object to questions, whisper in your ear or argue on your behalf. The USCIS officer does not want to speak to your attorney – he or she wants to speak to you. With few exceptions, I do not believe it helps my client to attend this interview, and therefore I prefer to save my clients some money by not attending. I am glad to answer any questions that you have and /or assist you in preparing for the interview. In the event that USCIS requires additional information after your interview, I will assist in providing it.

Once the interview is complete your petition should be approved and the Permanent Resident card (aka the “green card”) should be mailed to you. I have never had an application denied based upon the interview stage. I have been informed that some of the USCIS officers who perform the interviews are less then pleasant, but none of my clients who attended their interview have been denied Adjustment of Status by the USCIS.

If the marriage is less than two years old at the time of the application, the alien will become a conditional Permanent Resident, and the “green card” will have an expiration date 2 years from issue. The alien must apply – usually with his or her spouse – to remove those conditions before the “green card” expiration date. If the alien does not do so, he or she falls out of status and becomes removable from the US. An unconditional Permanent Residence card has an expiration date 10 years from issue – and the alien’s status does not change just because the card expires.

As a Permanent Resident, the alien has permission to live and work in the United States indefinitely and with very few restrictions. Any Permanent Resident should be careful about extended absences from the United States, as an extended absence may lead the USCIS to the conclusion that you have abandoned your Permanent Resident status, and may present a problem when you try and reenter the United States. In addition, certain crimes and other activities may lead the United States government to take action to strip the alien of their Permanent Resident status and remove them to their home country.

Keep in mind that an alien who becomes a Permanent Resident through marriage to a US citizen can apply for naturalization after only 3 years as a Permanent Resident. I strongly recommend that my clients do so as early as possible.

Please contact my office with any questions about this or other immigration questions.

Marriage-Based Green Card for Canadians Marrying a U.S. Citizen

Adjustment of Status or Consular Processing

As outlined in our Marriage-Based Green Card for Canadians page, there are two ways to apply for a green card through marriage: 1) Adjustment of Status in the United States, or 2) Consular Processing from a U.S. consulate abroad. You can apply for adjustment of status if you are currently in the United States on a work visa, student visa or investor visa. If you are outside of the United States, you would apply for an immigrant visa at the U.S. Consulate in Montreal.

Proof of Bona Fide Marriage

In order for a Canadian to qualify for a green card by marrying a U.S. citizen , they must be able to demonstrate that the marriage is legitimate and bona fide. That means that they have to provide sufficient proof that the marriage is real and entered into in good faith – not just for purposes of obtaining a green card.

A bona fide relationship isn’t necessarily determined by how long a couple has been together. A couple may have only been dating for a few months before getting married and that would still be a bona fide marriage.

To prove that a marriage is bona fide, the couple will have to provide extensive documentation and evidence. These can include photographs, joint accounts, proof of traveling together, and proof of living together. There is no standard checklist of documents to prove a bona fide marriage. Every relationship is different, so documents and proof will vary with each case. This is the most important part of a case and it is crucial to have an experienced immigration lawyer prepare an application that ensures all criteria are met.

Green Cards for LGBTQ and Same-Sex Marriages

Canadian-American couples in same sex marriage are eligible for green cards. Read more about Same-Sex and LGBTQ Marriages.

Engaged same-sex and LGBTQ couples can also apply for the K-1 fiancé visa.

Adjustment of Status in the U.S.

A Canadian citizen who is currently residing in the United States in lawful status may be able to adjust their status to a green card. Valid status may include a work visa, investor visa, or student visa.

Adjustment of status requires the American citizen to submit a petition to USCIS indicating his or her intent to sponsor the Canadian spouse. The Canadian spouse may concurrently file a form known as an Application to Register Permanent Residence or Adjust Status, seeking to change the Canadian’s current immigration status to that of a permanent resident.

Consular Processing from Abroad

A Canadian citizen who is currently residing outside of the U.S. can apply for a marriage-based green card through consular processing. After the U.S. citizen spouse’s petition is approved, the Canadian spouse will be required to attend an interview in Montreal. If approved, he or she will be issued an immigrant visa and subsequently a green card after moving to the U.S.

Employment Authorization

A Canadian citizen with a pending adjustment of status application with USCIS can apply for employment authorization (EAD) which allows them to seek employment while they are waiting for their green card interview. Employment authorization is not available to those applying for a green card through consular processing. It is only available for those adjusting their status in the U.S.

As of October 2019, employment authorization appears to be taking about six months for approval. Unless the Canadian is already in a valid non-immigrant status such as TN status, H-1B status, E-2 status, L-1 status, or O-1 status, they should not accept any type of employment until the EAD is approved.

Advance Parole

With the exception of those in H-1B status or L-1 status, Canadians with a pending adjustment of status application through marriage with USCIS cannot travel outside the United States until their green card is approved. Doing so may result in USCIS considering the green card application as abandoned. Advance Parole is not available to Canadians applying for a green card through consular processing.

When applying for adjustment of status through marriage, the Canadian should also submit an application for Advance Parole. When approved, Advance Parole will permit them to travel outside the United States and return while their green card application is still pending. It should be noted that Advance Parole is discretionary and that CBP officers have discretion whether to re-admit them into the United States. As such, Advance Parole should generally only be used in emergency or humanitarian situations. Advance Parole applications submitted with EAD applications will usually be issued at the same time. As of October 2019, Advance Parole applications appear to be taking about 6 months to be issued.

Affidavit of Support

For both adjustment of status and consular processing applications, the U.S. citizen spouse is required to sign an affidavit of support confirming that he or she meets the income requirement to support the Canadian spouse after the green card is issued. When signing an affidavit of support, the sponsor is affirming that he/she will remain obligated to their spouse until one of the following has been met: 1) they become a U.S. citizen; 2) they die; 3) they leave the U.S. and abandons residency; or 4) they earn 40 quarters of social security credits.

Use of Income

The income requirement varies depending on the size of the U.S. citizen spouse’s household. The larger the household, the more income he or she is required to demonstrate.

Use of Assets

Instead of income, the U.S. citizen sponsor can also use assets such as savings, retirement funds, or real estate. For savings, the amount must be at least 3 times the difference between the income requirement and the income earned. For real estate, the U.S. citizen can have an appraisal done to assess the current value of the home minus any outstanding mortgage balance.

Use of Joint Sponsor

If the U.S. citizen sponsor does not meet the income or asset requirements, they can use a joint sponsor or co-sponsor who does. The joint sponsor must be a U.S. citizen or permanent resident (green card holder) but there is no requirement that he or she be related to the primary sponsor.

Learn More About How a Canadian Married to an American Can Apply for a Marriage Green Card

Feel free to email us if you want to learn more about how to sponsor a Canadian for a green card through marriage.