The two main procedural routes used for applying for a U.S. green card (lawful permanent residence) are called “consular processing” and “adjustment of status.” A few — but not all — applicants are allowed to make a choice between the two. This article will help you weigh the pros and cons and decide which process to use.
What Are Consular Processing and Adjustment of Status?
Consular processing means that, after the intending immigrant has had a visa petition (Form I-130 or I-140) approved on his or her behalf, and (if he or she is in a preference category) found that his or her priority date is “current” and a visa number has become available, the applicant submits the subsequent green card application to, and attends an interview at, a U.S. consulate or embassy in the applicant’s home country.
Adjustment of status means that the green card portion of the application is handled entirely within the United States, through an office of U.S. Citizenship and Immigration Services (USCIS). In cases of immediate relatives, the visa petition and adjustment of status application can be submitted concurrently (at the same time).
Which Applicants Have No Choice But to Consular Process
Intending immigrants who are already overseas are expected to consular process. This understandably makes some applicants impatient, as the process can take several months. However, looking for a way around the process is likely to get you nowhere, or worse.
For example, some applicants have attempted to enter the U.S. on the Visa Waiver Program, or using a tourist visa, thinking that they will then be able to adjust status. However, VWP entrants are (with only a few exceptions) prohibited from applying to adjust status. And using a tourist visa with the idea of entering the U.S. in order to apply for a green card is considered visa fraud, and may make you ineligible for the green card or for any other visa or U.S. entry.
In short, if you are an immigrant living overseas and in the process of applying for a green card, you should plan to go through consular processing.
Which Applicants Have a Choice Between Consular Processing and Adjustment of Status
Intending immigrants who are in the U.S. now in legal status, or who entered the U.S. legally and are the immediate relatives of U.S. citizens, can either submit an application for adjustment of status or choose to go the consular processing route. So can immigrants who happen to fall under an old section of the immigration laws called Section 245(i).
See the “Who Is Eligible to Adjust Status?” question under Frequently Asked Questions About Adjustment of Status for details on these eligibility rules.
If you have the choice of adjusting status, you should ask your petitioner to note your choice on your Form I-130 or I-140, if you are submitting these as separate documents. If you are submitting them concurrently with your green card application, however, you don’t need to give USCIS any advance notice–you just mail in your application and await follow-up action.
A final note: Some applicants, while they technically have a choice, should really choose adjustment of status rather than consular processing if at all possible, because of their past unlawful stay in the United States. See “Advantages and Disadvantages to Adjustment of Status,” below, for further explanation.
Advantages and Disadvantages to Consular Processing
Depending on which country you are from and which part of the U.S. you live in, your local U.S. consulate may be handling visa applications at a faster rate than your local USCIS office. You can check both of their processing times online. If speed in entering the U.S. is particularly important to you, then a faster consular processing time might be a reason to choose this option.
When comparing processing times, don’t forget that if you choose consular processing, you will have to add in the time it will take USCIS to process the initial visa petition before turning the case over to the State Department and consulate for further processing. Concurrent filing of all your paperwork is not an option when dealing with the consulate.
The disadvantages to consular processing are many. You won’t be able to have an attorney present to help you present the case and advocate on your behalf. If the interview goes badly and you are asked to submit follow-up documentation, it can be hard, even if you have hired an attorney, for him or her to figure out exactly what the consulate is asking for, and why.
Any delays in the process may mean an even longer time during which you are apart from your family in the U.S., or have to tell your new U.S. employer to keep the job open for you a little longer.
Also, there is no right of appeal from a consular denial (though you can reapply, if no permanent ground of ineligibility was turned up during the application process).
Advantages and Disadvantages to Adjustment of Status
As soon as you apply for adjustment of status, your stay in the U.S. is lawful until your application has been decided upon (even if your underlying visa expires). You can get a work permit (EAD) while your application is pending. You can also leave the U.S. while your application is pending if you have applied for and obtained what’s called “advance parole.”
You will able to have an attorney present at your adjustment interview. The attorney can help you make sure you have all your required paperwork in order for the interview. Although the attorney cannot answer questions for you, he or she can help argue why the law is on your side if need be, and help clear up any confusion that the interviewing officer may have about your case.
If your case is denied after adjustment of status interview, you will (unless you are still in valid visa status) be placed into removal proceedings — which sounds bad until you realize that it offers you an opportunity to present your application for a green card all over again, to an immigration judge.
But by far the most important reason to choose adjustment of status, if you have this option, is that it allows you to avoid the impact of the three- and ten-year time bars for your past unlawful presence (if any) in the United States. These time-bar penalties are in most cases handed out only after an applicant leaves the U.S., including for an interview at a U.S. consulate. If you have spent any time in the U.S. without permission, read Consequences of Overstaying on a Temporary U.S. Visa to further understand how this might affect you. A waiver of these time bars is available based on extreme hardship to U.S. citizen or permanent resident spouses or parents; and some applicants who are immediate relatives of U.S. can event apply for this waiver before leaving the U.S., on a provisional basis — but approval of the waivers is far from automatic. If you’ve got the choice of adjusting status, it’s far easier to just go that route.