As a general rule, foreign nationals who qualify for the right to live and work in the United States must apply for a immigrant visa at a US embassy or consulate abroad. The most common ways for an alien to obtain a green card are through employment, through marriage to a US citizen spouse or lawful permanent resident (marriage visa) or other immediate family relationship, or by winning the diversity visa lottery. Often, the alien must remain outside the United States to complete the process. However for aliens who have overstayed their visa, leaving the United States often triggers three (3) or ten (10) year bars to re-entry, which are difficult to overcome.
Certain immigrants who are present in the United States are eligible to apply for their green card, and adjust status to that of a green card holder, while living in America. Green card applicants who qualify for this adjustment of status will not have to worry about the time bars faced by those outside the US who must apply for their visa in an American embassy or consulate in a foreign country.
Who can apply for adjustment of status?
There are generally three categories of aliens who can adjust status in the US: those who are married to United States citizens and entered legally, whether or not they have overstayed their non-immigrant visa; those lucky enough to have visas currently available to them (including spouses of lawful permanent residents), who entered legally and have not been unlawfully present and have not worked illegally; and those protected by section 245(i) of the INA. Immigrants who entered on a K1 visa (fiance visa) and subsequently married their US citizen petitioner within 90 days of entry can also adjust status in America.
Adjustment of Status Process
Green card applicants wishing to complete the process in the US must file certain forms, including I-485 and I-130 for adjustment of status based on marriage or other family relationship. It could take six months or more to obtain a green card; the process includes an adjustment of status (green card) interview, medical exam, and background check. Those hoping to work or travel during the period when their green card application is processing should also apply for EAD (work permit) and advance parole (travel permit). Note: not all applicants will qualify for the work/travel permit and the advance parole does not guarantee re-entry into the United States. It also does not cure a prior overstay.
Those spouses who adjust status based upon a marriage that is less than 2 years old when the green card is issued will receive a conditional green card (CR-1), which is valid for two years from the date of issue. They will be required to apply for a permanent green card (IR-1) prior to the expiration date of the conditional green card and show evidence that the marriage was bona fide (real) and not entered into to evade immigration laws. This process is called removal of conditions.