When applying for a spousal visa (marriage-based green card), the appropriate process to follow will depend on where the spouse seeking a green card currently lives.
If they live and apply from within the United States, they’ll go through a process known as “adjustment of status.” It is also referred to as “concurrent filing” when the required paperwork — the family sponsorship form (I-130) and adjustment of status application (I-485) — are filed together (filing these separately is unusual in most cases). All applications filed from within the United States are handled by U.S. Citizenship and Immigration Services (USCIS), which is part of the U.S. Department of Homeland Security (DHS).
When the spouse seeking a green card lives and applies from abroad, however, the procedure to follow is known as “consular processing,” because it involves officers at U.S. consulates and embassies. Applications filed from abroad are handled by the National Visa Center (NVC), which is part of the U.S. Department of State.
Each process has its own timeline, as well as a different set of application forms, supporting documents, and costs, but the overall eligibility requirements are the same. While most couples have no choice between the two options, some couples may be in a position to decide for themselves whether one approach is better than the other for their specific circumstances and goals.
In this guide, we’ll discuss when you do and don’t have a choice in the process, along with important considerations for each path.
Boundless can help you obtain a marriage-based green card, whether you apply through adjustment of status or consular processing. We make it easy to complete your green card application by turning all the required government forms into simple questions you can answer online — typically in under two hours, compared with days or weeks the traditional way. Learn more, or get started now.
Most couples don’t actually have a choice in whether to apply for a marriage green card from within the United States or from abroad. Let’s explore each scenario where a couple must follow one particular process:
Adjustment of status
If the sponsoring spouse is a green card holder (not a U.S. citizen), and the spouse seeking a green card lives and plans to stay in the United States while their green card application is pending, they would need to apply for adjustment of status.
In this case, however, the spouse seeking a green card must be able to maintain a valid immigration status in the United States while they wait. Maintaining a valid immigration status means having a valid visa — such as an H-1B work visa or an F-1 student visa — until they’ve filed their green card application (Form I-485). That’s because they’ll need to wait until a visa number becomes available before applying for the green card from within the United States. (Visa numbers are immediately available to spouses of U.S. citizens but not to spouses of green card holders.) In practice, this means that the spouse seeking a green card must have a valid visa for up to 2.5 years after filing the marriage-based green card application. (Learn more from our detailed guide to the marriage-based green card timeline.)
If the sponsoring spouse is a green card holder (not a U.S. citizen), and the spouse seeking a green card lives in the United States but cannot maintain a valid immigration status, they’ll need to apply from abroad and follow the consular process. Not being able to maintain a valid immigration status means their current visa has expired or is due to expire, and they’re unable to secure an extension or an entirely new visa before they file their green card application (Form I-485).
If they stay in the United States for six months or longer past their temporary visa’s expiration date, they would be barred from re-entering the United States for three or 10 years once they leave and attempt to return (see this article for important details about the consequences of “overstaying”).
They would also need to obtain a document called a “waiver of inadmissibility” (basically, “forgiveness” from the U.S. government) before they leave the United States, which would allow them to avoid the three or 10-year bars to re-entry, so it’s essential to leave the United States within six months of the temporary visa’s expiration and continue the green card process from abroad.
If the spouse seeking a green card lives abroad and does not have a valid visa to enter the United States, then they generally must apply from abroad and follow the consular process.
The drawback here is that the couple may need to live apart while waiting for green card approval, though not necessarily the entire time. Although a spouse seeking a green card may technically visit their spouse in the United States with a tourist visa, this option is generally discouraged because of the risks involved. More importantly, if they visit the United States as a tourist and then apply for a green card while in the United States, they would potentially be violating U.S. immigration law. It’s usually much easier for the sponsoring spouse to visit their spouse abroad.
Some couples may choose where and how to apply for a marriage-based green card. Let’s discuss when one process may be a more suitable approach:
Living in the United States with a valid visa
If the sponsoring spouse is a U.S. citizen, and the spouse seeking a green card lives in the United States and currently has valid immigration status (that is, they have a temporary visa, such as an H-1B work visa or an F-1 student visa, that has not expired), they can choose between adjustment of status and consular processing.
The best option depends on the couple’s goals for the next year or two:
Option 1: Apply from abroad through consular processing
This is generally the best option if, before settling in the United States, the spouse seeking a green card wants to spend a year in their home country for any reason (for example, to finish their education or sell their home).
Option 2: Apply from within the United States through an adjustment of status
This is generally the best option if the spouse seeking a green card wants to stay in the United States while their green card application is pending. The spouse seeking a green card will be able to stay in the United States even if their current visa (or other immigration status) has expired. Any amount of time that the spouse seeking a green card “overstayed” would generally be waived as a benefit of marriage to a U.S. citizen. It’s important to understand, however, that a new USCIS policy may increase the risks of staying in the United States with an expired immigration status, even for spouses of U.S. citizens (read the full details in our policy alert).
The spouse seeking a green card may also follow this process if they live in the United States but are on a short international trip. They should keep in mind, however, the consequences of marrying a U.S. citizen or green card holder within 90 days of entering the United States on a temporary visa.
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If both spouses live together abroad, there are a couple of ways to apply for a marriage-based green card:
Option 1: Apply as if the sponsoring spouse were living in the United States
If the sponsoring spouse is a U.S. citizen, you can follow the process for most spouses living abroad and married to a U.S. citizen, and you will need to take additional steps (see below).
If the sponsoring spouse is a green card holder, you would follow the process for most spouses living abroad and married to a green card holder, and you will need to take additional steps (see below).
Some couples may send their application materials to an international USCIS office rather than to a U.S.-based USCIS office. This option is available in countries or regions where USCIS has an office (check this list of office locations). The biggest advantage of filing with an international USCIS office is faster processing time compared with filing with USCIS in the United States. Depending on which office you file with, it could shave months off of the application process.
Option 2: Apply based on “exceptional circumstances”
For couples with “exceptional circumstances,” they may submit their application materials directly to their nearest U.S. consulate or embassy. This special process is called “Direct Consular Filing” and is the fastest way to get a marriage-based green card: usually about three months from start to finish. Not all U.S. consulates offer this filing option, however, and the State Department does not provide an official list of those consulates.
Examples of exceptional circumstances that qualify for this type of processing include the following (see the full list on the State Department’s website):
- If the sponsoring spouse is in the U.S. military, is stationed abroad, and is deployed or must transfer under short notice
- If either spouse needs urgent medical treatment in the United States
- If either spouse faces an imminent threat to their personal safety
Regardless of which option you choose to follow above, if both spouses live abroad, then the sponsoring spouse will also need to prove one of the following:
- That they’ve maintained residency in the United States (for example, by maintaining a home or employment in the United States and filing a U.S. income-tax return).
- That they intend to re-establish residency in the United States once the marriage-based green card application is approved. To do so, the sponsoring spouse will need to submit both evidence and an affidavit (sworn statement) stating that they intend to return to the United States. Evidence can include signing a lease on a U.S. home, registering your children in a U.S. school, opening a U.S. bank account, and taking a U.S.-based job.
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Not sure which option is best for you, as the spouse seeking a green card? Here’s a quick summary of when it’s likely better to apply from within the United States (adjustment of status) and from abroad (consular processing):
Consider using adjustment of status if:
- You physically live in the United States and want to spend the next year living here.
- Your sponsoring spouse is a green card holder, and you’ll be able to maintain a valid immigration status in the United States for the next 2.5 years.
Consider using consular processing if:
- You want to spend the next year living abroad, and your sponsoring spouse is a U.S. citizen.
- Your sponsoring spouse is a green card holder, and you won’t be able to maintain a valid immigration status in the United States for at least 2.5 years after filing the family sponsorship form (Form I-130).
Regardless of which process you follow, there will be some limitations on when and where you can travel as the spouse seeking a green card:
- If you choose to go through consular processing, it can be difficult to travel to the United States while your application is pending — even just for a short trip. This is the case even if you already have a valid tourist visa.
- If you choose to go through adjustment of status, you may not travel outside of the United States until you receive a travel permit (officially called an “Advance Parole Travel Document”). In addition, you’ll have to be present for interviews and appointments, either in the United States or at the U.S. embassy or consulate.
Consular processing complications
When going through consular processing, there’s an added risk that your application could be flagged for “administrative review,” which means your application will undergo further screening. It’s unclear exactly why certain cases are flagged for review, but it generally means that an immigration officer has found some type of irregularity. This would add time — sometimes months — to the application process. During this period, it would also be difficult to find out the status of an application.
There is no danger of “administrative review,” however if you apply for a marriage-based green card from within the United States.
“Public charge” complications
In January 2018, the U.S. Department of State began applying a stricter set of standards on who is eligible for a green card, scrutinizing factors such as age, health, education, family size, and finances. USCIS has proposed its own policy, known as the “public charge rule,” which would impose even greater constraints on green card applicants. The USCIS policy won’t go into effect until mid-2019 at the earliest, however, which means that for now, the adjustment of status pathway may be more predictable and less onerous than the consular processing pathway.
Boundless helps you avoid common problems. Every marriage-based green card application through Boundless is thoroughly reviewed by independent immigration lawyer for accuracy and completion. Only after this independent lawyer has confirmed the readiness of your application package will Boundless mail it to you for filing with the federal government. Let’s begin!