Spouse of U.S. Citizen Adjustment of Status

Can the spouse of a U.S. citizen adjust status in the United States?

See Immediate Relative Adjustment of Status.

The marriage must be legally valid

USCIS first determines whether a valid marriage exists under the law governing the marriage and federal immigration principles.

The record should establish:

• A legally valid marriage ceremony or other recognized marriage;
• Legal capacity of both spouses to marry;
• Termination of every prior marriage by divorce, annulment, or death;
• Recognition of any foreign divorce or marriage under applicable law; and
• No legal impediment that prevented the marriage from being valid when entered.

A marriage certificate is essential evidence, but it does not by itself establish that the marriage qualifies for immigration benefits.

The marriage must be bona fide

The parties must have entered the marriage intending to establish a life together rather than solely to obtain an immigration benefit.

USCIS commonly examines the relationship from its beginning through the date of adjudication.

Form I-130 and Form I-485 can often be filed together

A spouse of a U.S. citizen normally has an immigrant visa immediately available. If the beneficiary is eligible to adjust status, the couple can often file the immigrant petition and adjustment application in one package.

A concurrent filing may include:

• Form I-130 filed by the U.S. citizen spouse;
• Form I-130A for the beneficiary spouse;
• Form I-485 filed by the beneficiary;
• Evidence of U.S. citizenship;
• Marriage and prior-marriage termination documents;
• Bona fide marriage evidence;
• Admission or parole evidence;
• Form I-864 and required financial evidence;
• Medical examination documentation as required; and
• Other forms or evidence appropriate to the individual case.

See Concurrent Filing of Form I-130 and Form I-485.

Lawful admission or parole usually remains necessary

The immediate-relative exemptions do not ordinarily eliminate the threshold INA §245(a) requirement that the applicant was inspected and admitted or paroled.

See Inspected and Admitted for Adjustment of Status, Parole and Adjustment of Status, and Entry Without Inspection and Adjustment of Status.

Visa overstay is often forgiven

A spouse of a U.S. citizen is generally exempt from the principal unlawful-status adjustment bar in INA §245(c)(2).

As a result, an applicant may potentially adjust after:

• A B-1/B-2 overstay;
• An F-1 or other nonimmigrant status violation;
• Remaining in the United States after an I-94 expired;
• Falling out of lawful nonimmigrant status before marriage; or
• Other status violations covered by the immediate-relative exemption.

See Visa Overstay and Adjustment of Status.

Unauthorized employment is often forgiven

Immediate relatives are generally exempt from the ordinary INA §245(c)(2) and §245(c)(8) unauthorized-employment bars.

The exemption can be important where the applicant:

• Worked without an EAD;
• Continued working after status expired;
• Worked for an unauthorized employer;
• Performed freelance or contract work;
• Engaged in unauthorized self-employment; or
• Worked outside the scope of an employment-authorized status.

See Unauthorized Employment and Adjustment of Status.

Marriage to a U.S. citizen does not cure entry without inspection

This is one of the most important distinctions in marriage-based adjustment.

The immediate-relative exemptions principally remove specified INA §245(c) bars. They do not generally rewrite INA §245(a).

A spouse who entered without inspection may need another adjustment mechanism, such as:

• Grandfathering under INA §245(i);
• A qualifying parole event;
• A specific statutory adjustment provision; or
• Consular processing, if legally appropriate after analysis of unlawful presence and other inadmissibility issues.

See INA §245(i).

Military parole in place can affect spouse adjustment

In qualifying military-family cases, parole in place can affect whether a person who originally entered without inspection satisfies the parole component of INA §245(a).

Parole in place is discretionary and requires independent eligibility. It does not automatically cure inadmissibility or every other adjustment problem.

See Parole in Place and Adjustment of Status.

Visa Waiver Program spouses

A person admitted under the Visa Waiver Program is generally subject to INA §245(c)(4), but Congress created an adjustment exception for qualifying immediate relatives.

A VWP entrant who marries a U.S. citizen may therefore potentially file Form I-485 even after the authorized 90-day period has expired.

These cases require special caution because VWP entrants waive most ordinary rights to contest removal.

See Visa Waiver Program Adjustment of Status.

K-1 fiancé entrants are subject to INA §245(d)

A K-1 entrant has a special adjustment framework. Marriage to a U.S. citizen does not necessarily permit ordinary adjustment through any U.S. citizen spouse.

INA §245(d) generally ties K-1 adjustment to the U.S. citizen who filed the qualifying fiancé petition.

See K-1 Adjustment Restriction Under INA §245(d) and K-1, K-2, K-3 and K-4 Adjustment of Status.

Marriage during removal proceedings triggers special rules

If the marriage occurred while administrative or judicial proceedings concerning the beneficiary's right to remain in the United States were pending, INA §245(e) and INA §204(g) can apply.

The marriage is not automatically considered fraudulent. However, the couple may have to establish the bona fide marriage through the heightened clear-and-convincing evidence standard and satisfy the separate petition and adjustment requirements.

See Marriage During Removal Proceedings and INA §245(e).

Prior marriage-fraud findings can create INA §204(c) problems

A prior determination that the beneficiary entered or attempted or conspired to enter a marriage to evade immigration law can create a separate statutory bar to approval of a later family-based immigrant petition under INA §204(c).

A new bona fide marriage does not automatically eliminate a properly established §204(c) finding.

USCIS may examine prior:

• Form I-130 petitions;
• Marriage interviews;
• USCIS site visits;
• Notices of Intent to Deny;
• Prior petition denials;
• Removal proceedings; and
• Evidence concerning earlier marital relationships.

The applicant must still be admissible

Marriage to a U.S. citizen does not eliminate the INA §212 grounds of inadmissibility.

Common issues include:

• Fraud or willful misrepresentation;
• Criminal convictions or conduct;
• Controlled substance violations;
• Prior removal or deportation;
• Unlawful presence after departure;
• False claims to U.S. citizenship;
• Alien smuggling;
• Health-related grounds;
• Security-related grounds; and
• Public-charge requirements.

Some inadmissibility grounds have waivers. Others have limited or no waiver in ordinary family-based adjustment.

Fraud or misrepresentation requires separate analysis

INA §212(a)(6)(C)(i) can apply where an applicant sought to procure a visa, admission, or other immigration benefit through a willful and material misrepresentation.

The government must establish the elements of the inadmissibility ground; marriage to a U.S. citizen does not itself erase the finding.

Where the applicant is otherwise eligible, INA §212(i) may provide a waiver in qualifying cases based on extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent.

Form I-864 Affidavit of Support

A U.S. citizen filing an immediate-relative spouse petition generally must satisfy the affidavit-of-support requirements under INA §213A.

The financial review can involve:

• The petitioner's most recent federal tax information;
• Current household income;
• Employment evidence;
• Household size;
• Assets where permitted;
• A qualifying household member; or
• A joint sponsor if necessary.

The petitioner generally remains a required sponsor even when a joint sponsor is used, unless a statutory exemption applies.

The marriage interview

USCIS may interview the couple before deciding the I-130 and I-485.

The officer may review:

• How the couple met;
• Courtship and engagement;
• Wedding events;
• Current residence;
• Daily routines;
• Finances;
• Family relationships;
• Prior marriages;
• Immigration history;
• Travel history;
• Employment history; and
• Any inconsistencies in the filing record.

The most important preparation is an accurate filing supported by genuine evidence. Spouses should not attempt to memorize artificial answers.

USCIS can issue an RFE or NOID

A marriage adjustment case can result in a Request for Evidence or Notice of Intent to Deny when USCIS believes the record is incomplete or contains substantial derogatory information.

Potential issues include:

• Insufficient bona fide marriage evidence;
• Conflicting interview testimony;
• Separate residences;
• Prior marriage petitions;
• Unexplained financial arrangements;
• Inconsistent immigration records;
• Suspected fraud;
• Missing affidavit-of-support evidence; or
• Admissibility concerns.

A response should address the actual evidentiary or legal concern rather than simply submit a larger volume of repetitive documents.

Conditional permanent residence when the marriage is under two years old

If the marriage is less than two years old on the date the foreign spouse obtains permanent residence through the marriage, the spouse generally becomes a conditional permanent resident under INA §216.

The conditional resident ordinarily must later seek removal of conditions through Form I-751.

Children do not automatically derive through the spouse's immediate-relative petition

Immediate-relative classifications do not ordinarily provide derivative beneficiaries.

If the U.S. citizen spouse also has a qualifying immigration relationship with the foreign spouse's child, the child generally needs a separate Form I-130.

A stepchild relationship for immigration purposes generally must have been created by marriage before the child's 18th birthday.

Divorce before adjustment approval

If the spouses divorce before the beneficiary obtains permanent residence through the marriage, the beneficiary generally ceases to qualify as the U.S. citizen's spouse for ordinary immediate-relative adjustment.

Possible exceptions or alternative immigration bases can exist in specific circumstances, including certain VAWA cases or another independent immigrant petition.

Separation without divorce does not automatically terminate the legal marriage, but it can become relevant to whether the marriage remains bona fide and whether the parties actually intend a marital life together.

Removal proceedings and jurisdiction

A valid marriage to a U.S. citizen does not automatically give USCIS jurisdiction over every Form I-485.

Depending on the procedural history, adjustment jurisdiction can lie with USCIS or the immigration court.

Relevant facts can include:

• Whether removal proceedings are pending;
• Whether proceedings were terminated or dismissed;
• Whether the applicant is an arriving alien;
• Whether a final removal order exists;
• Whether reopening is required; and
• Which agency has authority over the adjustment application.

Evidence checklist for spouse adjustment

• Proof of petitioner's U.S. citizenship.
• Marriage certificate.
• Divorce decrees, annulments, or death certificates terminating prior marriages.
• Joint residential evidence.
• Joint financial evidence.
• Tax records.
• Insurance records.
• Photographs and travel evidence.
• Children's birth certificates where relevant.
• Relationship communications and chronology where useful.
• Passport and identity records.
• I-94 or other admission or parole evidence.
• Complete immigration history.
• Form I-864 evidence.
• Medical examination documentation.
• Criminal records when applicable.
• Waiver evidence when required.

Common spouse adjustment problems

Primary authorities

Related INA245.com guides

Frequently asked questions