Securing Your Green Card Without Leaving the United States
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.
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.
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).
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 |
Because AOS is adjudicated domestically by USCIS rather than the Department of State, the USCIS Policy Manual, Volume 7, part d plays a particularly important role in how cases are evaluated in practice.
The Four Legal Pillars of Marriage-Based AOS
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 USCIS Policy Manual, Vol 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
Download our complete marriage-based petition checklist.
Evaluation standards for family-based AOS cases are described in USCIS Policy Manual, Vol 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.
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.
Government Filing Fees (2026)
| Form |
Purpose |
Fee |
| I-130 |
Petition for Alien Relative |
$675 |
| I-485 |
Green Card Application |
$1,440 |
| I-765 |
Work Permit |
$260 |
| I-131 |
Travel Document |
$630 |
| I-693 |
Medical Exam |
~$300–$600 |
Estimated government costs: $2,375–$3,005, excluding legal fees.
Always check the latest fees online with USCIS.
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:
Nonimmigrant intent
The intent to enter the United States for a specific, temporary purpose and to depart upon completion of that purpose.
Immigrant intent
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
- 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 Visa Categories
Certain nonimmigrant visa categories are classified as “dual intent.” These categories explicitly allow a foreign national to enter the United States temporarily while simultaneously intending to seek permanent residence in the future. In these cases, immigrant intent does not create a problem at entry.
The primary dual intent visa categories 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
- O-3 dependents of O-1 visa holders
- P visa holders in certain circumstances
- K-1 fiancé visa applicants
- 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 technically not statutory dual intent classifications.
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 always 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:
- Two-year Conditional Permanent Residence
If married more than two years:
- Ten-year Permanent Residence
Removal of conditions requires filing Form I-751 before expiration.
Why USCIS Policy Manual Matters 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) 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
In practical terms, the Policy Manual often reflects how cases are decided in real life.
Frequently Asked Questions (FAQ)
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
- 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
- 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
- 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. JD, University of Pennsylvania Law School, Licensed with the SRA (SRA ID: 384468) in the UK, Member Law Society of England & Wales, MBA, Wharton School of Business. Top 10 Investment Visa Lawyer, Licensed (USA), Georgia State Bar. AILA Member.
| Area |
Details |
|
Education
|
JD, University of Pennsylvania Carey Law School | MBA (Finance), The Wharton School, University of Pennsylvania | Chartered Accountant (ICAEW) |
|
Financial Training
|
Completed Analyst Training Program at a major international bank | Chartered Accountant background with professional training in financial analysis and reporting |
|
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 Track Record
|
15+ years advising HNW investors |
Zero denials for clients advised on source-of-funds compliance in EB-5 | Hundreds of successful EB-5 cases globally
|
|
Recognition
|
Named a
Top 25 EB-5 Immigration Attorney by EB5 Investors Magazine (2018–2023)
|
|
Professional Engagements
|
Lecturer/trainer for other lawyers at AILA, ACA, University of Pennsylvania Law School | Frequent speaker at global investment immigration conferences |
