How to Get a Green Card If You’re On a Visitor Visa
If you’re visiting the United States for business or pleasure on a B-1/B-2 visitor visa and you recently married a U.S. citizen or green card holder (permanent resident), you can apply for a marriage visa to live with your spouse in the United States.
As a B-1/B-2 visitor, you could potentially apply for a green card from within the United States, a process known as “adjustment of status” (AOS). You can also apply from your home country using consular processing. In this guide we’ll cover both options to help you determine the best approach, and to avoid common pitfalls that could affect your green card application.
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The Differences Between Adjustment of Status and Consular Processing
Marriage-based green cards can be issued either through Adjustment of Status (for applicants already in the United States) or consular processing (for applicants outside the United States). The visa application processes are similar in many ways, but there are also important differences between the two. Learn more about these two options with our in-depth guide.
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What the 90-Day Rule Means for B-1/B-2 Visitor Visa Holders
Figuring out whether to use AOS or consular processing can be complicated, and making the right choice will depend on your personal situation. It’s especially important to understand that while B-1/B-2 visa holders can sometimes use AOS to apply for a green card, they may face extra scrutiny when they do so.
That’s because when you enter the United States on a B-1/B-2 visa, you’re declaring your intention to return home before your period of admittance expires. If you instead remain in the United States and begin the AOS process, you could find yourself quizzed over whether you misrepresented your intentions when you first entered the country. If a USCIS officer decides you deliberately lied, they could reject your green card application and revoke your temporary visa.
To avoid that situation, it’s important to understand the 90-day rule used by USCIS officers. This guideline states that temporary visa holders who file a green card application within 90 days of arriving in the United States are presumed to have “willfully misrepresented” their intentions.
USCIS officers can decide for themselves whether you misrepresented your intentions, so you may still be able to convince them that you were truthful. Still, it’s best to avoid triggering such scrutiny in the first place. Waiting 91 days or more after your most recent entry before filing your green card application can help ensure your application proceeds smoothly.
Two paths to a green card
As a B-1/B-2 visa holder, your route to a marriage green card will differ depending on whether your spouse is a U.S. citizen or a green card holder.
Let’s look at both pathways in more detail:
Path 1: If you’re married to a U.S. citizen
If you’ve married a U.S. citizen and plan to apply for a green card via Adjustment of Status, you’ll follow the same procedure used by most other spouses living in the United States and married to a U.S. citizen.
You and your spouse will first need to file the following forms — typically at the same time (filing these separately is an option but would be unusual in most cases):
- The family sponsorship form — or Form I-130 (officially called the “Petition for Alien Relative”) — to be completed and signed by your spouse who is a U.S. citizen
- The green card application — using Form I-485 (officially called the “Application to Register Permanent Residence or Adjust Status”) — to be completed and signed by you, the B-1/B-2 visitor.
As long as you married your U.S.-citizen spouse “in good faith” — that is, you did not marry for the sole purpose of obtaining a green card, which you’ll need to prove to the U.S. government — you should be able to receive your green card within 5 to 16 months from the time USCIS receives your application package.
Remember, as a B-1/B-2 visitor you’ll also want to make sure you don’t trigger the 90-day rule, which could lead to a determination that you misrepresented your intentions when you first entered the United States.
As a B-1/B-2 visa holder, you also have the option of returning to your home country and completing your green card application via consular processing. In this case, your application will be processed by your local U.S. consulate or embassy. You’ll pay slightly lower fees and typically face a somewhat longer wait before you receive your green card. Read the Boundless guide for spouses living abroad and married to a U.S. citizen for full details on how to complete an application by consular processing.
Path 2: If you’re married to a green card holder
IMPORTANT UPDATE (March 24, 2023):
In the April 2023 Visa Bulletin, the F-2A family-based category, which includes spouses and unmarried children under age 21 of U.S. Green Card holders, experienced a significant change. The “Final Action Dates” for F-2A applications are no longer current due to a backlog of cases, meaning that applications whose priority dates have reached the front of the line and can be adjudicated are no longer valid. However, the “Dates for Filing” for the F-2A category remain current, allowing applicants to file their green card applications. Nevertheless, these applications will not be adjudicated until the priority date becomes current. For Mexican applicants, the “Final Action Date” or priority date has retrogressed to November 1, 2018, and for all other applicants, it has retrogressed to September 8, 2020. As a result, there will likely be a significant increase in wait times for green cards in the F-2A category. We will closely monitor this development and provide updates in our monthly Visa Bulletin report.
If you’ve married a green card holder and plan to apply for a green card via Adjustment of Status, your spouse must file the family sponsorship form, or Form I-130 (officially called the “Petition for Alien Relative”). Once the Form I-130 is approved, you must wait to receive a visa number. Only once your visa number becomes available will you be able to apply for a marriage-based green card. (Visa numbers are immediately available to spouses of U.S. citizens but not to spouses of green card holders.)
The next step depends on whether your visa number becomes available before or after your B-1/B-2 visa expires:
If a visa number becomes available before your visa expires, you will be able to stay in the United States and follow the same green card application process for most other spouses living in the United States and married to a green card holder using Form I-485 (officially called the “Application to Register Permanent Residence or Adjust Status”). Once your marriage-based green card application is approved, your physical green card will arrive.
If a visa number will become available after your visa expires, you will need to leave the United States and use consular processing, following the same green card application process for most other spouses living abroad and married to a green card holder.
You must follow this procedure unless you can secure an extension of your B-1/B-2 visa or get a different type of temporary visa (such as an F-1 student visa) to stay legally in the United States, in which case you must follow the the process for spouses living in the United States and married to a green card holder.
Remember, if your green card holder spouse becomes a U.S. citizen while you are waiting for a visa number, you can switch to the process for spouses of U.S. citizens, as described above, even if you’ve already begun the application process.
If you or your spouse recently became eligible for U.S. citizenship, let Boundless guide you through the naturalization process from start to finish. Answer our 5-minute questionnaire to get started.
IMPORTANT: The costs for marriage green cards are likely to increase significantly in the coming months, based on USCIS’ new fee increase proposal. Check out Boundless’ USCIS fees guide to see the expected costs and keep up to date on any government changes to filing costs.
Traveling with a pending green card application
If you begin or complete your green card application from your home country using consular processing, you’ll avoid any issues with the 90-day rule. But you could still face scrutiny if you try to visit your spouse in the United States while your application is pending.
That’s because the Customs and Border Protection (CBP) officer you meet upon arrival may decide that your green card application shows your intent to move permanently to the United States. In such a case, your B-1/B-2 visa might be revoked, and you might be denied entry to the country. Make sure you understand the risks and the precautions you can take, before deciding to travel to the United States.
Whatever you do, don’t lie about your intentions, and don’t conceal the fact that you’re married to a U.S. citizen or permanent resident. Doing so could put your green card application at risk.
If you begin your application from the United States using AOS, you’ll need an “advance parole” travel document if you want to travel abroad while your application is pending, even if you still have a valid visitor visa. Make sure you fully understand this process before leaving the country, since your application could be terminated if you slip up.
What happens after your green card is approved
If you’re used to traveling back and forth between the United States and your home country on a B-1/B-2 visa, it’s important to understand that as a green card holder, you will be expected to permanently leave your home country to live in the United States. Leaving for an extended period, or traveling so frequently that you cast doubt on your U.S. residence, could put you at risk of losing your green card.
If you don’t plan to live in the United States permanently after being issued a green card, you might want to reconsider your options — or to postpone your application until you are ready to permanently relocate.
After maintaining your green card for 5 years (or 3 years, if you married a U.S. citizen) you’ll be eligible for U.S. citizenship. Read Boundless’ guide for more information on the naturalization process.
B1/B2 visa overstay
If you overstay on your B1/B2 visa — in other words, remain in the United States past the expiration date on your visa — you could be barred from re-entering the U.S. in the future.
If you overstay and you’re married to a U.S. citizen, your period that you overstayed would be waived, and you can generally follow Path 1 outlined above.
If you overstay for less than 180 days and you’re married to a green card holder, you’re permitted to leave the U.S. and apply for a green card from abroad, using consular processing. Or, if your green card holder spouse becomes a U.S. citizen before you depart the U.S., you can typically remain in the country and apply to adjust your status using Path 1 above.
Don’t forget your B-1/B-2 visa extension
If you’re on a 6-month visitor visa, you may be able to request an additional 6-month extension to your stay without leaving the country. It’s best to file either an extension or AOS request before your current visitor visa expires to ensure you don’t fall out of status. If you do wind up slipping out of status, check with a lawyer before leaving the country to make sure you understand the implications for your green card application.
Need guidance on your B-1/B-2 visa? With Boundless, you get personalized application and interview support from an experienced team, ready to answer any questions you may have along the way. Get started on your travel visa today.
Avoid travel trouble
If you’ve already married a U.S. citizen or green card holder, you might be tempted to simply keep using your B-1/B-2 visa instead of seeking a green card, especially if you don’t plan to permanently relocate to the United States. Be aware that CBP officers may be skeptical about your intentions, and could even refuse you entry upon hearing that you’re married to a U.S. citizen or permanent resident. The duration between visits and the strength of your ties to your home country could shape how your case is viewed.
Consider the K visa
If you haven’t yet gotten married, but will be traveling to the United States for your wedding, consider using a K visa instead of a B-1/B-2 visa. The K visa is a dedicated fiance(e) visa that will eliminate any awkward questions about your intentions, and that provides a clear pathway for seeking a green card through AOS, without leaving the United States, after your wedding.
Whatever path you choose, Boundless is here to help. Get started today!