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Sponsoring a Spouse for Permanent Residence from WITHIN the United States

Earlier, I described how the U.S. immigration system works, in a very general way.  I also discussed how a US citizen or lawful permanent resident (greencard holder) can sponsor a foreign spouse living in another country to be admitted to the United States and be granted permanent residence. Sometimes, though, the foreign spouse already is physically in the United States. Often, they are holding a different nonimmigrant status. Sometimes, the foreign spouse is unlawfully present in the United States because, although they were admitted legally, they remained in the United States past the date they were supposed to leave.  Occasionally, the foreign spouse is illegally in the United States. Resolving each of these situations involves a slightly different set of paperwork.

If Juliet, a U.S. citizen or permanent resident (greencard holder) living in Chicago, wants to marry Romeo, an Italian who is attending school in Chicago, then:

  • Juliet must petition the U.S. Citizenship and Immigration Service (USCIS) to “label” Romeo as her “Spouse of a US Citizen” (as defined by immigration law). The petition is a Form I-130.  It must be accompanied by documentation confirming both Juliet’s and Romeo’s identity, as well as detailed documentation showing that the relationship is real.  Right now, the USCIS takes about 6 months to decide these.
  • At the same time, Romeo must apply to “adjust” from his current nonimmigrant status to that of a permanent resident. He files a Form I-485 Adjustment “bundle”.  This includes a simultaneous application for employment authorization (Form I-765) and for a travel document (Form I-131).  The employment authorization document (EAD) enables Romeo to work.  The travel document enables him to travel abroad and still be re-admitted to the United States while the greencard is pending.  The EAD and travel document are a single combined card, and usually issued within three months. The USCIS usually takes between 6 and 9 months to issue the greencard but, again, this can vary wildly depending on the couple’s circumstances.

From filing to greencard might take a year, although sometimes it takes longer.  However, Romeo is working and living in the United States through this.  However, the process can be expensive.  The USCIS has a list of current filing fees on its website, but at the time of writing this post, the following were the fees required:

  • Form I-130: $420
  • Form I-485 bundle: $1,070

Before we conclude our discussion of Option 1, let’s return for a moment to Romeo. Romeo started out as an F-1 Student.  One of the terms or limitations of F-1 Student status is that it prohibits “immigrant intent” – the intention to reside indefinitely in the United States.  By marrying Juliet, Romeo suggested immigrant intent.  When he filed his Form I-485 Adjustment application, he clearly demonstrated immigrant intent. However, the moment that he violated his F-1 student status by filing the Form I-485 Adjustment application, he simultaneously was granted, by law, “a period of leave authorized by the Attorney General”. In other words, the law said that spouses of US citizens who filed applications to adjust status are “not illegal”.  This “not-illegal” presence in the United States continues until the I-485 Adjustment application is decided.  If it is approved, then Romeo becomes a permanent resident and everything is fine.  If the application is denied, then the only thing permitting him to remain in the U.S. is gone.  Romeo should immediately talk to an immigration attorney about his options, or depart the United States.

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