Change of status for Visitor visa holder married to a permanent resident

There is a long wait (currently about 5 years) for a visa number to become available for a spouse of a green card holder. If the spouse is in the US without legal immigration status (for example, with an expired visitor visa), the spouse can be removed from the US at any time. Merely being married to a green card holder or even a US citizen does not give a person any valid immigration status. Having a pending I-130 visa petition does not give a person any valid immigration status. A person not an immediate relative of a US citizen generally cannot adjust status in the US if the person is not currently in a valid immigration status. Both of you should review the facts with an attorney. Perhaps there are other ways for the spouse to remain in the US in a legal immigration status (such as by obtaining a student visa) while waiting for a visa number to become available.

I trust that the response of Thuong-Tri Nguyen was helpful for you. Looking for another way for your fiancee to obtain legal status to remain in the U.S. and to accept employment should be an initial focus. Note also, that in September, 2012 you should be eligible to file for naturalization, and once you become a U.S. Citizen you should be able to petition for your wife to adjust status regardless of any unlawful presence and/or unlawful employment. Additionally, I believe the long delay for visas for Second Preference family-based cases (such as a spouse of a Permanent Resident) is harsh. If comprehensive immigration reform laws become enacted, as may be likely in the next year or two, there may be some beneficial changes relating to this type of case. [Consistent with policy, this response is intended as general information and not specific legal advice, and this response does not create an attorney-client relationship.] David David N. Soloway Frazier, Soloway & Poorak, P.C. 1800 Century Place, Suite 100 Atlanta, Georgia 30345 404/320-7000 ext 5 [email protected]