Published November 28, 2017
A foreign national applying for permanent resident status by way of marriage to a U.S. citizen, continues to enjoy a mostly efficient and streamlined process, especially if they undergo all steps in the U.S. as an “adjustment of status” applicant. For most eligible foreign nationals present in the U.S., whether in legal status or not, adjustment of status processing for permanent resident status at their local Department of Homeland Security/Citizenship and Immigration Services office (DHS/CIS) is usually preferable to overseas immigrant visa processing at a U.S. consular post. For various reasons though, not all individuals present in the U.S. are eligible to undergo all processing here, either because they entered the U.S. without a visa, or they are not “grandfathered in” under the special adjustment of status provision known as “INA 245(i)”.
For those that are eligible to adjust status in the U.S., total processing time from filing date to interview is approximately 6 months, with green card issuance following within a week or two thereafter for approved applicants. Also, while awaiting the scheduling of their interview, applicants are issued employment authorization (including advance parole, authorizing international travel for eligible applicants) within approximately 90 days of filing. The interview for those applying for adjustment of status through marriage to their U.S. citizen spouse, continues to feature questioning of the applicant and spouse regarding the history of their relationship, the nature of their shared living arrangement and their motivations for marrying one another. These areas of inquiry are in addition to questions on a variety of other topics, including the applicant’s criminal history, the financial fitness of the U.S. citizen petitioner under Affidavit of Support regulations, and the basis of any previous denied or withdrawn permanent residence application – especially one involving an earlier marriage.
Importantly, there is no one right way for parties to respond to the above relationship inquiries, just as there is no one right way for couples to relate to one another, or have their assets divided, commingled or somewhere in between. As long as the marriage is premised on a sincere love, the parties are residing together and no other legal bases of ineligibility are at play, the DHS/CIS adjudicators usually get it right and grant approvable cases.
For cases where the DHS/CIS adjudicator is suspicious of the relationship and claimed living arrangement, processing of the green card application will be delayed, sometimes for years, pending an investigation.
Gay Marriage Green Card Interview: Newer to the landscape of adjustment of status interviews are the sometimes delicate questions that come up in the context of an application premised on a foreign national’s marriage to a U.S. citizen of the same sex. In the years same sex marriage has been allowed as a basis for a green card application, I have represented dozens of clients in preparing and filing their adjustment of status document packages, and attending their green card interviews at their local DHS/CIS office. In most ways, the process, including the interview, is no different than one involving a heterosexual couple. But what about the applicant who previously lived their life as a heterosexual, including with an opposite sex spouse and even children?
Yes, sometimes the interview becomes complicated, but applicants have an opportunity to explain. Yes, there will be all the questions one would think would be asked. Yes, the questions can become awkward. But for the gay applicant whose history includes an opposite sex marriage and family, he/she must be comfortable with the discussion of how they evolved into the person that married someone of the same sex. An honest and blunt presentation of the circumstances surrounding their previous lifestyle and change to their current one will usually suffice. And yes, qualified same sex marriage adjustment of status applicants are indeed being issued their green cards, the same as if they were married to someone of the opposite sex.
PUBLISHED November 28, 2017– “IMMIGRATION LAW FORUM” Copyright © 2017, By Law Offices of Richard Hanus, Chicago, Illinois