If you’re visiting the United States on a B-1/B-2 visitor visa for business or tourism and you recently married a U.S. citizen or green card holder (permanent resident), you may be able to apply for a marriage-based green card to live with your spouse in the U.S.
As a B-1/B-2 visitor, you might be able to apply for a green card without leaving the U.S. through a process called “adjustment of status” (AOS). Alternatively, you can apply for a green card through consular processing in your home country. This guide will explain both options and help you choose the best approach while avoiding common mistakes that could affect your application.
Adjustment of Status vs. Consular Processing
Marriage-based green cards can be issued either through Adjustment of Status (AOS) if you’re already in the U.S., or through consular processing if you’re outside the U.S. Both processes are similar, but there are key differences. Read on for more details to help you understand each option.
Understanding the 90-Day Rule for B-1/B-2 Visa Holders
Choosing between AOS or consular processing can be tricky, and it’s essential to consider your specific situation. One critical thing to know is the 90-day rule, which affects B-1/B-2 visa holders.
When you enter the U.S. on a B-1/B-2 visa, you’re declaring your intent to leave the country before your visa expires. If you apply for a green card shortly after arriving, you might face scrutiny, as it could look like you misrepresented your intentions. If a USCIS officer believes you lied about your intentions, they could reject your green card application and revoke your visa.
To avoid this, follow the 90-day rule: if you file your green card application within 90 days of entering the U.S., USCIS will assume you misrepresented your intent. It’s safer to wait 91 days or more before applying for your green card to avoid complications.
Two Paths to a Green Card
Your route to a green card as a B-1/B-2 visa holder depends on whether your spouse is a U.S. citizen or a green card holder.
Path 1: If You’re Married to a U.S. Citizen
If you’ve married a U.S. citizen, you’ll typically apply for your green card by filing two forms:
- Form I-130 (Petition for Alien Relative): This form is filed by your U.S. citizen spouse to sponsor you.
- Form I-485 (Application to Register Permanent Residence or Adjust Status): You’ll file this form to adjust your status to a permanent resident.
If your marriage is genuine and you can prove it’s not just for a green card, you should receive your green card within 5 to 16 months. Be sure not to trigger the 90-day rule, as that could complicate your application.
Alternatively, if you prefer, you can return to your home country and apply for your green card through consular processing. This process may take a little longer but can be an option if you’re not ready to adjust your status while in the U.S.
Path 2: If You’re Married to a Green Card Holder
If your spouse is a green card holder, you must first wait for them to file Form I-130 (Petition for Alien Relative). Once USCIS approves this petition, you’ll need to wait for a visa number to become available. For spouses of green card holders, visa numbers are not always immediately available.
- If the visa number becomes available before your visa expires, you can stay in the U.S. and file Form I-485 to adjust your status.
- If the visa number becomes available after your visa expires, you’ll need to leave the U.S. and apply for your green card through consular processing.
It’s important to note that if your spouse becomes a U.S. citizen while you’re waiting for a visa number, you can switch to the process for spouses of U.S. citizens.
Important Update on Green Card Wait Times
As of March 2023, significant changes occurred in the F-2A category (spouses and children under 21 of green card holders). This change may lead to longer wait times for green card approval, especially for applicants from Mexico and other countries.
Traveling While Your Green Card Application is Pending
If you’re applying for your green card through consular processing, you won’t face issues with the 90-day rule. However, if you apply while in the U.S., traveling internationally could pose risks. U.S. Customs and Border Protection (CBP) officers may view your pending green card application as evidence that you intend to stay in the U.S. permanently, which could lead to denial of your entry.
If you’re applying through AOS and need to travel, be sure to get an advance parole travel document before leaving the country, even if you still have a valid B-1/B-2 visa. Failing to do so could terminate your application.
What Happens After Your Green Card is Approved?
Once you receive your green card, you’re expected to make the U.S. your permanent home. Traveling too frequently or staying in your home country for long periods may raise concerns about whether you’re living in the U.S. permanently, which could jeopardize your green card status.
After holding your green card for 5 years (or 3 years if married to a U.S. citizen), you may apply for U.S. citizenship.
Special Issues for B-1/B-2 Visa Holders
Overstaying a B-1/B-2 Visa
If you overstay your B-1/B-2 visa, you may be barred from re-entering the U.S. in the future. However, if you’re married to a U.S. citizen, any overstayed time may be waived. If you’re married to a green card holder, you can generally leave the U.S. and apply for a green card abroad, or, if your spouse becomes a U.S. citizen, you can apply for AOS while still in the U.S.
B-1/B-2 Visa Extensions
If you’re on a 6-month visitor visa, you may be eligible for a 6-month extension without leaving the U.S. To avoid falling out of status, be sure to apply for an extension or AOS before your visa expires.
Consider the K Visa
If you’re engaged to a U.S. citizen and plan to marry in the U.S., consider applying for a K visa (fiancé(e) visa) instead of a B-1/B-2 visa. The K visa is designed for couples planning to marry in the U.S. and provides a direct path to obtaining a green card through AOS after the wedding.
By following the right steps and understanding your options, you can successfully navigate the U.S. immigration process and achieve your goal of living with your spouse in the United States.
If you need guidance through the green card process, don’t hesitate to reach out to an immigration expert or use helpful resources like Boundless to get personalized support with your visa and green card applications.
