US Marriage Visa and Adjustment of Status: Which Route Fits Your Case?
Quick Answer
If the foreign spouse is already inside the United States after a lawful admission or parole, marriage-based Adjustment of Status may allow the person to apply for a Green Card without leaving the United States. If the foreign spouse is outside the United States, the usual route is a CR-1 or IR-1 immigrant visa through consular processing. If the couple is engaged and the foreign partner is abroad, a K-1 fiancé(e) visa may be the better fit.
This page focuses on marriage-based Adjustment of Status, but it also explains how AOS compares with the broader US marriage visa process so couples can understand which path applies to them.
Executive Summary: Is Adjustment of Status Right for You?
Adjustment of Status, commonly called AOS, allows a foreign national already present in the United States to apply for Lawful Permanent Residence without leaving the country.
For many married couples, AOS is the most efficient and least disruptive path to a Green Card because it can preserve family unity, allow a work permit application, and avoid an immigrant visa interview abroad. It is not right for every couple. The correct route depends on where the foreign spouse is located, how they entered the United States, whether they are married to a U.S. citizen or lawful permanent resident, whether a visa number is available, and whether there are fraud, unlawful presence, criminal, or prior immigration issues.
This Guide Is For:
- Spouses of U.S. citizens currently in the United States
- Spouses of Green Card holders maintaining lawful status
- Couples filing concurrent I-130 plus I-485
- Individuals on valid nonimmigrant visas who married after entry
- Couples seeking to avoid separation and obtain work authorization while waiting
In most cases, you must have been lawfully admitted or paroled into the United States to file Form I-485 through marriage.
Marriage Green Card Route Finder: AOS, CR-1/IR-1, or K-1?
Many people search for a “US marriage visa,” but U.S. immigration law uses several different routes depending on whether the couple is already married, where the foreign national is located, and whether the foreign national entered the United States lawfully.
| Situation |
Typical immigration route |
Main forms or process |
Key issue to check |
| Married to a U.S. citizen and foreign spouse is already in the U.S. after lawful admission or parole |
Marriage-based Adjustment of Status |
Forms I-130 and I-485, often filed together, with I-864, I-693, I-765, and I-131 where appropriate |
Lawful entry, bona fide marriage, admissibility, and favorable USCIS discretion |
| Married to a U.S. citizen and foreign spouse is outside the U.S. |
CR-1 or IR-1 immigrant visa through consular processing |
Form I-130, National Visa Center processing, DS-260, and U.S. consular interview abroad |
Documentary completeness, admissibility, and consular interview preparation |
| Engaged to a U.S. citizen and foreign partner is outside the U.S. |
K-1 fiancé(e) visa, followed by marriage and AOS after entry |
Form I-129F, K-1 visa interview, marriage within 90 days, then Form I-485 |
The couple must marry within 90 days and the K-1 entrant generally adjusts only through the original U.S. citizen petitioner |
| Married to a lawful permanent resident and foreign spouse is in the U.S. |
AOS only when the family preference category is current and the applicant is eligible |
Form I-130 first or concurrent filing only if visa availability permits, then Form I-485 |
Visa Bulletin availability and maintenance of lawful status are usually critical |
| Entered without inspection or has serious inadmissibility issues |
Fact-specific waiver or consular strategy may be required |
May involve I-130, I-601A, I-601, I-212, VAWA, 245(i), or other relief depending on facts |
Marriage alone does not cure unlawful entry, fraud, or many criminal grounds |
This route finder is a general framework. USCIS adjustment rules, Department of State consular processing rules, waiver availability, and case facts can change the analysis.
U.S. marriage-based immigration is governed by the same federal law wherever the foreign spouse is located, but couples often prefer to work with a local office. Davies & Associates advises clients through regional offices, including its United Kingdom, Japan, and Singapore practices, each staffed by U.S.-qualified immigration lawyers.
Legal Authority:
The legal authority for Adjustment of Status is found at INA §245(a), implemented through 8 CFR 245.1 and 245.2, and interpreted by USCIS in the USCIS Policy Manual, Volume 7 (Adjustment of Status).
2026 USCIS Policy Update
New USCIS Adjustment of Status Discretion Memo: PM-602-0199
On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, titled Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process.
The memo does not eliminate marriage-based Adjustment of Status. Spouses of U.S. citizens and lawful permanent residents may still qualify where they meet the statutory and regulatory requirements. However, the memo is important because USCIS expressly reminds officers that AOS is a discretionary benefit, not an automatic entitlement, even where the applicant appears otherwise eligible. For a full explanation of the memorandum across all visa categories, see our USCIS adjustment of status discretion memo guide.
The memo also signals a stricter tone. It describes adjustment as an “extraordinary” relief that lets an applicant avoid the ordinary consular immigrant visa process, and states that when a nonimmigrant or parolee fails to depart as expected and instead seeks adjustment, that can be treated as an adverse discretionary factor. For marriage-based cases, this means a filing should do more than show a valid marriage and completed forms. A strong filing should also present the favorable discretionary record: lawful admission or parole, bona fide relationship evidence, family unity, compliance history, financial support, admissibility, absence of fraud, and any humanitarian or practical reasons why approval inside the United States is warranted.
Adjustment of Status vs Consular Processing
| Feature |
Adjustment of Status |
Consular Processing |
| Location |
Inside the U.S. |
U.S. Embassy abroad |
| Separation |
No required departure |
Applicant must leave |
| Work Authorization |
Eligible for EAD while pending |
No U.S. work until entry |
| Travel |
Requires Advance Parole |
No restriction until interview |
| Risk |
Denial may create status issues |
Denial leaves applicant abroad |
| Discretion after PM-602-0199 |
USCIS may evaluate whether the applicant merits favorable discretion inside the United States |
Consular officers decide visa eligibility abroad and do not adjudicate Form I-485 discretion |
Because AOS is adjudicated domestically by USCIS rather than the Department of State, the USCIS Policy Manual, Volume 7, Part D and USCIS policy memoranda play a particularly important role in how cases are evaluated in practice.
The Five Legal Pillars of Marriage-Based AOS After PM-602-0199
1. Lawful Entry and Eligibility
To adjust status, the applicant must generally prove they were “inspected and admitted” or “paroled” into the United States under INA §245(a).
This is typically shown through:
- Form I-94
- Passport entry stamp
- Visa documentation
Bars to adjustment are listed in INA §245(c), with regulatory implementation in 8 CFR 245.1.
USCIS officer guidance on these issues appears in the USCIS Policy Manual, Volume 7.
Important Distinction
Immediate relatives of U.S. citizens may often file for Adjustment of Status (using Form I-485) even after an overstay or unauthorized employment, as long as they were lawfully admitted or paroled into the United States and are otherwise eligible. Spouses of lawful permanent residents generally must maintain lawful status until a visa number is available and they can file Form I-485.
Even for immediate relatives, unlawful entry is not forgiven by marriage alone, and other inadmissibility issues may still apply.
2. Proving a Bona Fide Marriage
USCIS must determine that the marriage is genuine and not entered into for immigration benefits.
The standard is “preponderance of the evidence,” meaning more likely than not.
Strong documentation includes:
Financial Integration
- Joint bank accounts
- Joint tax returns
- Insurance policies
- Beneficiary designations
Shared Residence
- Lease or mortgage
- Utility bills
- Driver licenses showing same address
Social and Relationship Evidence
- Wedding photographs
- Travel records
- Affidavits from friends and family
Checklist for Marriage-Based Adjustment of Status Cases
A well-organized filing helps USCIS see both eligibility and favorable discretion. A typical marriage-based AOS package includes:
- Form I-130 petition with proof the petitioner is a U.S. citizen or lawful permanent resident
- Form I-485 application with the applicant’s proof of inspection and admission or parole (I-94, entry stamp, visa)
- Marriage certificate and proof any prior marriages were lawfully ended
- Bona fide marriage evidence — joint finances, shared residence, photographs, affidavits
- Form I-864 Affidavit of Support with the sponsor’s income or asset evidence
- Form I-693 medical examination by a USCIS-designated civil surgeon
- Forms I-765 and I-131 if work authorization and Advance Parole are requested
- Passport-style photos, government IDs, and certified translations where needed
- Disclosure of all arrests or prior immigration history, with certified dispositions
For related filing guidance, see our I-130 petition guide and I-485 adjustment guide.
Download the Marriage-Based Checklist (PDF)
Evaluation standards for family-based AOS cases are described in the USCIS Policy Manual, Volume 7, Family-Based Adjustment sections.
3. Financial Sponsorship: The I-864
The U.S. petitioner must file Form I-864 Affidavit of Support.
The statutory basis is INA §213A, with regulations at 8 CFR 213a.
The sponsor must demonstrate income at 125 percent of the Federal Poverty Guidelines.
If income is insufficient:
- A joint sponsor may file a separate I-864
- Household member income may be included
- Assets may be used under regulatory valuation formulas
The Affidavit of Support is a legally enforceable contract with the federal government.
4. Admissibility and Medical Examination
Applicants must be admissible to the United States under INA §212(a).
Common grounds include:
- Criminal history
- Fraud or misrepresentation
- Health-related issues
The required medical examination (Form I-693) is governed by 8 CFR 245.5 and relates to health inadmissibility under INA §212(a)(1).
Any history of fraud or misrepresentation is analyzed under INA §212(a)(6)(C)(i).
Because AOS is adjudicated by USCIS domestically, officers apply these grounds using internal guidance found in the USCIS Policy Manual.
5. Favorable Exercise of Discretion After PM-602-0199
Even when an applicant satisfies the technical requirements for Adjustment of Status, USCIS may still ask whether the case merits approval as a matter of discretion. PM-602-0199 reinforces that adjustment allows an applicant to obtain permanent residence without completing the ordinary immigrant visa process abroad, so officers may consider both favorable and unfavorable factors.
In marriage-based AOS cases, favorable discretionary factors may include:
- A lawful admission or parole into the United States
- A well documented bona fide marriage
- Family unity with a U.S. citizen or lawful permanent resident spouse
- U.S. citizen or lawful permanent resident children
- Compliance with immigration rules after entry, where applicable
- Absence of criminal, fraud, or national security concerns
- Timely and complete responses to USCIS requests
Potential adverse discretionary facts may include fraud concerns, inconsistent testimony, undisclosed arrests, prior immigration violations, unresolved inadmissibility issues, or evidence that the applicant entered as a visitor with a preconceived plan to remain permanently. Under the memo, the absence of adverse factors by itself does not guarantee approval; USCIS weighs the totality of the circumstances.
Practical Filing Point After the Memo
Marriage-based AOS filings should now be prepared as both an eligibility filing and a discretion filing. The record should make it easy for USCIS to approve the case by showing not only that the applicant qualifies under INA §245(a), but also why the applicant deserves the favorable exercise of discretion. For the full discretion analysis across all visa categories, see our USCIS adjustment of status discretion memo guide.
Marriage-Based Exceptions and Forgiveness Provisions in U.S. Law
U.S. immigration law treats marriage to a U.S. citizen, and to a lesser extent to a lawful permanent resident, more generously than most other categories. Several statutory provisions soften or excuse problems that would block other applicants. The provisions below are the main ones. They are summarized here for general information; the precise eligibility rules, dates, and waiver standards are technical and should always be confirmed with an immigration attorney before relying on them.
1. Immediate Relative Treatment Under INA §245(a) and §245(c)
This is the most important forgiveness provision in marriage-based cases. Most of the bars to adjustment listed in INA §245(c) — including unauthorized employment, failure to maintain lawful status, and overstaying an authorized period — expressly do not apply to an “immediate relative” of a U.S. citizen. The spouse of a U.S. citizen is an immediate relative under INA §201(b). As a result, a spouse of a U.S. citizen who was inspected and admitted or paroled may generally still adjust status even after an overstay or unauthorized work. This treatment does not extend equally to spouses of lawful permanent residents, who generally must maintain lawful status.
2. No Visa Cap for Immediate Relatives (INA §201(b))
Spouses, parents, and unmarried minor children of U.S. citizens are “immediate relatives” and are not subject to the annual numerical limits or the Visa Bulletin waiting lines that apply to most family preference categories. There is no priority date wait for the spouse of a U.S. citizen.
3. INA §245(i) Grandfathering
Under INA §245(i), certain applicants who are the beneficiaries of a qualifying immigrant petition or labor certification filed on or before a cut-off date may adjust status despite having entered without inspection or having other status problems, on payment of an additional penalty fee. Eligibility under §245(i) is narrow and date-dependent, and whether a person qualifies should be confirmed with an attorney.
4. INA §245(k) for Certain Employment-Based Cases
INA §245(k) allows some employment-based applicants to adjust status despite brief status violations, generally where the violation totals less than a limited number of days. This is most relevant where a marriage-based applicant also has an employment-based pathway.
5. The INA §212(i) Waiver for Fraud or Misrepresentation
A finding of fraud or willful misrepresentation under INA §212(a)(6)(C)(i) is normally a permanent bar. However, INA §212(i) provides a discretionary waiver where the applicant has a qualifying U.S. citizen or lawful permanent resident spouse or parent and can show the required hardship. Marriage to a U.S. citizen can therefore open a waiver route that would not otherwise exist.
6. The INA §212(a)(9)(B)(v) Unlawful Presence Waiver
Applicants who triggered the three-year or ten-year unlawful presence bars may seek a waiver under INA §212(a)(9)(B)(v) where they have a qualifying U.S. citizen or lawful permanent resident spouse or parent and can show extreme hardship. In many cases this is requested in advance through the provisional (I-601A) waiver process before departure for consular processing.
7. VAWA Self-Petitioning
The Violence Against Women Act allows an abused spouse of a U.S. citizen or lawful permanent resident to self-petition for permanent residence without the abuser’s knowledge or cooperation. PM-602-0199 itself notes that an approved VAWA self-petitioner is treated differently from other applicants under the INA §245(c) bars. VAWA protection is available to spouses of any gender.
8. K-1 Fiancé(e) Entrants and INA §245(d)
K-1 fiancé(e)s are one of the clearest examples of why PM-602-0199 cannot be applied mechanically. The K-1 visa is designed for a foreign fiancé(e) to enter the United States, marry the U.S. citizen petitioner within 90 days, and then pursue adjustment of status. The fiancé(e) process is governed by INA §214(d), 8 U.S.C. §1184(d), and INA §245(d), 8 U.S.C. §1255(d), specifically addresses adjustment for K visa entrants.
For a K-1 who marries the petitioning U.S. citizen and files Form I-485, adjustment is not an attempt to evade consular processing — it is the statutory next step Congress built into the K-1 category. USCIS may still examine admissibility, the bona fides of the relationship, criminal history, fraud, and other discretionary factors, but the decision to file Form I-485 after a K-1 marriage should not, by itself, be treated as an adverse discretionary factor. For more detail on the fiancé(e) route, see our K-1 fiancé(e) visa guide.
9. The I-751 Good-Faith Marriage Waiver
A spouse who received a two-year Conditional Green Card normally files Form I-751 jointly with the spouse to remove conditions. If the marriage has ended, USCIS may still grant removal of conditions through a waiver where the applicant shows the marriage was entered into in good faith, even after divorce, and in cases involving abuse or extreme hardship.
10. Widow or Widower Petitions
The widow or widower of a U.S. citizen may, in defined circumstances, still pursue permanent residence after the citizen spouse’s death, including by self-petition within the time limits set by law.
Important
These provisions reduce or excuse specific problems; they do not erase every issue. Unlawful entry, serious criminal grounds, and certain security-related bars are treated separately and may not be waivable. Because PM-602-0199 directs officers to weigh the full record as a matter of discretion, an applicant relying on any of these provisions should document both the legal basis for relief and the favorable equities in the case.
Filing Strategy
Spouses of U.S. citizens may typically file concurrently:
Spouses of Green Card holders must wait for visa availability under the Visa Bulletin before filing I-485.
After PM-602-0199, applicants should also consider adding a concise legal cover letter that identifies the statutory basis for adjustment, addresses admissibility, and explains the positive discretionary factors supporting approval.
Government Filing Fees for Marriage-Based AOS
USCIS fees change periodically and filings sent with the wrong fee may be rejected. The table below is a planning guide only. Always confirm the current fee on the official USCIS filing fees page before filing.
| Form |
Purpose |
Planning note |
| I-130 |
Petition for Alien Relative |
Required for the U.S. citizen or lawful permanent resident spouse to petition for the foreign spouse. USCIS fees may differ for online and paper filing. |
| I-485 |
Application to Register Permanent Residence or Adjust Status |
The core Green Card application for a spouse applying from inside the United States. |
| I-765 |
Employment Authorization |
Optional but commonly filed so the applicant can request a work permit while AOS is pending. |
| I-131 |
Advance Parole / Travel Document |
Optional but important if the applicant may need to travel while Form I-485 is pending. |
| I-864 |
Affidavit of Support |
Usually required, but USCIS generally does not charge a separate filing fee for Form I-864 when submitted with AOS. |
| I-693 |
Medical Examination |
No USCIS filing fee for the form itself, but the civil surgeon charges a separate medical exam fee. |
Because fees, fee exemptions, and filing methods can change, couples should verify the official USCIS fee schedule at the time of filing rather than relying on an old checklist or blog post.
Travel While AOS Is Pending
Leaving the United States without Advance Parole generally results in abandonment of the I-485 under 8 CFR 245.2(a)(4)(ii).
Advance Parole must be approved before travel.
Limited exceptions may apply to certain H-1B and L-1 visa holders.
Employment While Pending
A pending AOS applicant may apply for an Employment Authorization Document under 8 CFR 274a.12(c)(9).
Work may begin only after the EAD is issued.
The 90 Day Rule, Immigrant Intent, and Intent at Entry
It is unlawful to enter the United States on many temporary visa categories with the intention of permanently remaining in the United States. Most nonimmigrant visas require that the applicant possess nonimmigrant intent, meaning the individual must intend to enter the U.S. temporarily and depart at the end of their authorized stay.
Advice for Applicants
Can I travel while my Adjustment of Status is pending? Not unless you first receive Advance Parole. If you leave the United States before Advance Parole is approved, your I-485 is generally considered abandoned under 8 CFR 245.2(a)(4)(ii). Limited exceptions may apply to certain H-1B and L-1 visa holders, but travel should always be reviewed carefully.
Immigrant Intent vs. Nonimmigrant Intent
U.S. immigration law draws a fundamental distinction between two kinds of intent.
Nonimmigrant intent is the intent to enter the United States for a specific, temporary purpose and to depart upon completion of that purpose.
Immigrant intent is the intent to permanently remain in the United States or pursue lawful permanent resident status.
Most temporary visa categories require the applicant to demonstrate nonimmigrant intent at the time of visa issuance and again at admission to the United States. This requirement is rooted in INA §214(b), which presumes that every visa applicant is an intending immigrant unless they overcome that presumption.
If an applicant enters the United States on a temporary visa and quickly marries a U.S. citizen or lawful permanent resident and files for Adjustment of Status, USCIS may examine whether there was misrepresentation at entry. The legal issue is fraud or willful misrepresentation under INA §212(a)(6)(C)(i).
If USCIS determines that the individual misrepresented their true intent when seeking admission, the applicant may be found inadmissible for fraud or misrepresentation. This carries severe consequences, including a permanent bar to admissibility unless a waiver is available and granted.
The 90 Day Rule
What the 90 Day Rule is NOT
Some applicants worry about the so-called “90 day rule.” There is no automatic USCIS denial rule based only on filing within 90 days. The key question is intent at entry and whether anything said to obtain entry was materially false. Timing may raise questions, but officers decide based on the full facts. If you entered recently and plan to file soon, consider legal advice first.
What the 90 Day Rule is
The “90 Day Rule” is a Department of State policy guideline used primarily in consular processing, rather than a statute or formal USCIS regulation. It provides that if a nonimmigrant visa holder engages in conduct inconsistent with their status within 90 days of entry, such as marrying a U.S. citizen and filing for permanent residence, officers may presume that the individual misrepresented their intent at the time of entry.
Although USCIS is not formally bound by the 90 Day Rule in the same way as consular officers, intent at entry remains a critical factor in Adjustment of Status adjudications. USCIS officers are trained to assess whether the applicant had a preconceived intent to immigrate when entering on a nonimmigrant visa.
Key point: The core legal issue is not the timing alone, but whether the applicant had immigrant intent at the time of entry and failed to disclose it when required.
Preconceived Intent and Misrepresentation
It is important to distinguish between a genuine change of circumstances after entry and a preconceived intent to immigrate at the time of entry.
A person who enters in good faith for a temporary purpose and later decides to marry and remain may not have committed fraud. However, entering with a preexisting plan to marry and adjust status can create serious legal risk if the visa category required nonimmigrant intent. The analysis is highly fact specific and depends on the totality of circumstances.
Dual Intent and Special Intent-Tolerant Visa Categories
Certain nonimmigrant visa categories are classified as “dual intent.” These categories allow a foreign national to enter the United States temporarily while also having a future intention to seek permanent residence. Other categories, such as K visas, are not ordinary tourist-style entries and have their own statutory purpose connected to marriage and later adjustment.
Categories that are dual intent, intent-tolerant, or specially protected from ordinary preconceived-intent concerns include:
- H-1B specialty occupation workers
- H-4 dependents of H-1B workers
- L-1 intracompany transferees
- L-2 dependents of L-1 workers
- O-1 individuals with extraordinary ability, which are often treated more flexibly in practice but are not statutory dual-intent classifications in the same way as H-1B and L-1
- O-3 dependents of O-1 visa holders
- P visa holders in certain circumstances
- K-1 fiancé visa applicants, where adjustment after marriage to the petitioning U.S. citizen is part of the statutory process
- K-3 spouses of U.S. citizens
Additionally, certain E treaty investors in limited contexts may have more flexible intent standards, though E visas are not generally described as statutory dual intent classifications in the same way as H-1B and L-1.
Note on PM-602-0199: the memo states that maintaining lawful status in a dual intent category is not, on its own, sufficient to warrant a favorable exercise of discretion. Dual intent removes the intent-at-entry problem, but the applicant must still present a strong overall discretionary record. Our USCIS adjustment of status discretion memo guide explains how this applies to each visa category.
Visa Categories That Require Strict Nonimmigrant Intent
By contrast, many common visa categories require strict nonimmigrant intent, including:
Entering under these categories with a preconceived plan to remain permanently can result in a finding of misrepresentation.
Practical Implications
Intent at entry remains one of the most misunderstood aspects of U.S. immigration law. While marriage to a U.S. citizen can provide a pathway to permanent residence, the timing and circumstances of entry matter significantly.
Individuals considering marriage and Adjustment of Status should carefully evaluate:
- The visa category under which they entered
- Their intent at the time of entry
- Whether their visa classification allows dual intent
- Whether consular processing may be safer in their circumstances
Processing Times in 2026
Typical timelines:
- Work permit: 4 to 6 months
- Advance Parole: 5 to 8 months
- Final Green Card decision: 12 to 18 months
Most marriage-based cases still involve an in-person interview at the local USCIS field office.
Special Considerations for Same-Sex Couples
United States v. Windsor, 570 U.S. 744 (2013)
Our firm has long supported same-sex couples.
Before Windsor, Section 3 of the Defense of Marriage Act (DOMA) defined marriage for federal purposes as between one man and one woman. Even if a same-sex couple was legally married under state law, the federal government did not recognize the marriage.
Because immigration law is federal, this meant:
- U.S. citizens could not sponsor same-sex spouses for green cards.
- Same-sex couples were treated as legal strangers under immigration law.
- Thousands of binational couples faced separation.
The Holding in United States v. Windsor: Immigration Benefits for Same-Sex Couples
In Windsor, the Supreme Court struck down Section 3 of DOMA as unconstitutional under the Fifth Amendment.
Immediate immigration impact: the federal government, including USCIS and the Department of State, was required to recognize lawful same-sex marriages for immigration purposes.
Within weeks:
- USCIS began approving same-sex spousal petitions (I-130).
- Same-sex spouses became eligible for family-based immigrant visas.
- Waivers, derivative visas, and all marriage-based benefits became available equally.
This decision transformed immigration law for LGBTQ couples.
More Information for Same-Sex Couples
Read our special guide for same-sex couples.
Conditional vs Permanent Green Card
If married less than two years at approval, the applicant receives two-year Conditional Permanent Residence.
If married more than two years at approval, the applicant receives ten-year Permanent Residence.
Removal of conditions requires filing Form I-751 before the conditional card expires.
Why USCIS Policy Manual and Policy Memoranda Matter in AOS Cases
Unlike consular processing, which is handled by the Department of State abroad, Adjustment of Status is adjudicated entirely by USCIS inside the United States.
That makes the USCIS Policy Manual, Volume 7 (Adjustment of Status) and current USCIS policy memoranda especially important.
While the INA and 8 CFR provide the legal framework, the Policy Manual explains how USCIS officers are instructed to:
- Evaluate eligibility
- Assess documentary sufficiency
- Apply inadmissibility grounds
- Conduct interviews
- Exercise discretion
PM-602-0199 should be read alongside the Policy Manual. It does not replace the statutory requirements for marriage-based adjustment, but it makes the discretionary analysis more prominent. Applicants should expect USCIS to look at the total record, including the relationship evidence, immigration history, admissibility, credibility, and whether approval is appropriate as a matter of administrative grace.
In practical terms, the Policy Manual and USCIS policy memoranda often reflect how cases are decided in real life.
Frequently Asked Questions (FAQ)
What is the difference between a US marriage visa and marriage adjustment of status?
A “US marriage visa” usually refers to a CR-1 or IR-1 immigrant visa processed through a U.S. embassy or consulate abroad. Marriage adjustment of status is different: it is the Form I-485 process for a spouse who is already inside the United States and eligible to apply for a Green Card without leaving.
Can I apply for a marriage Green Card from inside the United States?
Often yes, if you were lawfully admitted or paroled, have a qualifying marriage-based petition, are admissible or eligible for any required waiver, and meet the requirements for Form I-485. Spouses of U.S. citizens often have more forgiving adjustment rules than spouses of lawful permanent residents, but unlawful entry, fraud, certain criminal issues, and other inadmissibility grounds require careful review.
Does the 2026 USCIS discretion memo change marriage-based Adjustment of Status?
It changes the way cases should be prepared, but it does not eliminate marriage-based Adjustment of Status.
USCIS Policy Memorandum PM-602-0199 emphasizes that adjustment is discretionary and not an automatic entitlement. A marriage-based applicant should therefore document both eligibility and favorable discretionary factors. See our USCIS adjustment of status discretion memo guide for the full analysis.
Can I travel while my Adjustment of Status is pending?
Not unless you first receive Advance Parole.
If you leave the United States before Advance Parole is approved, your I-485 is generally considered abandoned under 8 CFR 245.2(a)(4)(ii).
Limited exceptions may apply to certain H-1B and L-1 visa holders, but travel should always be reviewed carefully.
Can I work while my case is pending?
Yes, after your Employment Authorization Document is issued.
Pending AOS applicants qualify under 8 CFR 274a.12(c)(9).
You may not begin working until you physically receive the EAD card.
What if I overstayed my visa?
If you are married to a U.S. citizen and entered lawfully, you may still adjust status under INA §245(a) despite overstay or unauthorized employment, subject to the exceptions in INA §245(c).
If married to a Green Card holder, maintaining lawful status is generally required until filing.
What if I entered on a tourist visa and then married?
This is common.
The legal concern is whether there was misrepresentation at entry under INA §212(a)(6)(C)(i).
USCIS may scrutinize cases filed shortly after entry, particularly within 90 days. Timing and documentation matter.
Do we have to attend an interview?
Most marriage-based cases require an in-person interview at the local USCIS field office.
Officers will verify identity, review documentation, ask questions about the relationship, and confirm admissibility.
Inconsistent answers can lead to further questioning or separation interviews.
What if my spouse is a Green Card holder?
You must wait for visa availability under the Visa Bulletin before filing I-485.
You cannot file Adjustment of Status until your priority date becomes current.
Maintaining lawful status during the wait is critical.
What if I have a criminal record?
All arrests and convictions must be disclosed.
Inadmissibility is governed by INA §212(a).
Certain offenses may require a waiver before adjustment is possible. Court certified dispositions should be reviewed before filing.
What if I was previously denied a visa?
A prior visa denial does not automatically prevent Adjustment of Status.
However, if the denial involved fraud, misrepresentation, or unlawful presence, additional legal analysis may be required.
What if we move while the case is pending?
You must update your address within 10 days by filing Form AR-11.
Failure to update your address can result in missed interview notices and denial.
What if we divorce before the Green Card is approved?
If the marriage ends before approval, the case will generally be denied.
If you already received a Conditional Green Card, you may still file Form I-751 with a waiver if the marriage was entered into in good faith.
Can I include my children?
Each qualifying child typically requires a separate I-130 petition.
Stepchildren may qualify if the marriage creating the relationship occurred before the child turned 18.
How long does the process take in 2026?
Average timelines: work permit 4 to 6 months, Advance Parole 5 to 8 months, and final decision 12 to 18 months.
Processing varies significantly by USCIS field office.
Will I receive a conditional or permanent Green Card?
If married less than two years at approval, you receive a two-year Conditional Green Card.
If married more than two years at approval, you receive a ten-year card.
Can I expedite my case?
USCIS may expedite in limited circumstances, including severe financial loss, humanitarian emergencies, and compelling U.S. government interests.
Expedite requests require strong documentary evidence and are granted sparingly.
When can I apply for U.S. citizenship?
If married to and living with a U.S. citizen, you may apply after three years of permanent residence under INA §319(a).
Otherwise, the standard five-year rule applies.
Attorney Credentials (Mark I. Davies, Esq.)
Mark I. Davies, Esq. Salzburg Fellow and JD, University of Pennsylvania Carey Law School. Licensed with the SRA (SRA ID: 384468) in the UK, Member Law Society of England & Wales, MBA, Wharton School of Business. Licensed (USA), Georgia State Bar. AILA Member.
| Area |
Details |
| Education |
Salzburg Fellow and JD, University of Pennsylvania Carey Law School | MBA (Finance), The Wharton School, University of Pennsylvania | Chartered Accountant (ICAEW) |
| Legal Practice |
Admitted to practice in Georgia (USA) | Registered Solicitor with the Law Society of England & Wales | Former CMBS lawyer at one of the world’s largest international law firms |
| Immigration Practice |
More than 15 years advising clients on U.S. immigration, including family-based and investment immigration matters |
| Professional Engagements |
Lecturer and trainer for other lawyers at AILA and the ACA | Frequent speaker at global immigration conferences |
