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Adjustment of Status vs. Consular Processing

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Our clients often ask us what the difference is between adjusting their status within the United States versus applying for a green card at a United States consulate abroad. In order to adjust your status to permanent resident within the United States by filing Form I-485, you and your spouse must be living inside of the United States at the time of filing. The intending immigrant must also have entered the United States legally in order to adjust status within the United States, although there are few exceptions (as is the case of individuals who qualify for 245i). This means that generally, in order to qualify for adjustment of status, you must have been inspected by a U.S. Customs official at a United States port of entry. As part of the Adjustment of status process, the green card applicant must be able to prove that they were inspected upon entry by showing their I-94 arrival/departure record. The I-94 is a small white paper that is placed in the passport containing a stamp of admission with the date of entry, place of entry, the person’s name, I-94 number, and other important details.

I-94A

Sample I-94 arrival/departure record

If you did not receive a paper I-94 in your passport, you may obtain your I-94 electronically by visiting the DHS website.

Consular processing on the other hand is an option that is typically utilized for spouses of US Citizens residing abroad and/or foreign spouses who have never visited the United States, do not have a United States visa, or cannot obtain one, because they are already married to a US Citizen. Foreign spouses who are obligated to travel frequently such as businesspersons may also prefer to obtain an immigrant visa through ‘consular processing’ because this process does not prohibit international travel. Adjustment of status applicants on the other hand are prohibited from traveling internationally once the I-485 green card application has been filed, unless they have received travel permission from USCIS known as an advance parole document. If the applicant travels without this advance parole document, the I-485 application will be considered abandoned.

Advance Parole for Adjustment of Status Applicants

In order to receive this advance parole document, the applicant must file Form, I-131 Application for Travel Document at the same time as Form, I-485 in order to return to the United States after temporary foreign travel. If the applicant wishes to apply for a work permit they must also file Form, I-765 Application for Employment Authorization. There is no additional fee for the I-131,765 applications if the applicant has a pending I-485 application with USCIS. The I-131,765 applications take approximately 90 days to process from date of filing and culminate in a travel/work permit combo card known as the EAD (Employment Authorization Document). This document allows the applicant to work, travel, obtain a SSN number, and driver’s license. Consular Processing applicants do not receive any travel or employment authorization and cannot obtain a driver’s license or SSN until they have received their green card once they enter the United States with an immigrant visa.

Adjustment of Status Benefits

There are many benefits that come with adjusting your status within the United States however to qualify you and your spouse must be living in the United States and you must have been inspected upon entry to the United States (with few exceptions), otherwise you are not eligible to apply for adjustment of status within the United States. If you have committed any immigration violations or have a serious criminal history, you must consult an attorney.

The main benefits to adjustment of status are the following:

  • Quick processing time (4-5 months);
  • Receive temporary employment/travel permit benefits within 90 days of filing;
  • Once the EAD card is received the applicant can obtain a driver’s license, SSN, and freely work and travel internationally;
  • Less taxing on the relationship since the couple is living together;
  • Attorneys are authorized to attend the green card interview with the couple;
  • USCIS is the only agency involved in adjudicating the application, which makes the process much easier;
  • If the applicant is denied, there are certain avenues that allow the applicant to appeal the decision (notice of intent to deny, motion to reopen, etc).

The main drawbacks include:

  • The applicant is prohibited from international travel until they have received an advance parole document;
  • The applicant cannot work until they receive the EAD card in the mail (within 90 days of filing);
  • The applicant cannot obtain a SSN or driver’s license until the EAD card is received;
  • Couples often find it difficult to show evidence of commingled finances since most institutions require the applicant to have a SSN (for example to open a joint bank account, or be added to an insurance policy);
  • Adjustment of status is also more expensive and must be paid all at once ($1490);

Consular Processing

The main drawback to consular processing is that there is a very long processing time for immigrant visa applications. The processing time for immigrant visas can vary depending on the applicant’s country of residence and the volume of applications being processed by the National Visa Center (NVC) and the U.S. Consulate where the applicant will have their interview. Typically, immigrant visa applications can take anywhere from 8-12 months to be adjudicated. The steps to obtain an immigrant visa through consular processing are also lengthy and complex. It is not recommended for applicants to file on their own.

Here is a basic summary of the steps involved:

  1. The U.S. Citizen spouse must first file Form I-130 Petition for Alien Relative and wait for the I-130 application to be approved by USCIS (3-4 months);
  2. Once the I-130 is approved, the application is transferred to the NVC (which takes an additional 90 days) for pre-processing;
  3. Once NVC notifies the applicant that their application has been received, the applicant must mail or e-mail certain civil documents to the NVC such as: DS-260 confirmation page, the I-864 affidavit of support, copies of birth certificate, marriage certificate, police and military records, divorce records, court and prison records, etc.) Please click here to read more about civil documents (see list of civil documents);
  4. Once the NVC has received all civil documents, they will review the documents and notify the applicant once all requirements have been satisfied (may take an additional 60-90 days);
  5. Once the NVC has completed pre-processing of the immigrant visa application, the case will be transferred to a US Consulate abroad where the applicant will have their interview (may take an additional 60-90 days);
  6. Once the US Consulate receives the case, they will schedule the applicant for an immigrant visa interview.

National Visa Center Overview

All immigrant visa applications are processed by the National Visa Center, which is inundated with thousands of applications that must be reviewed. The National Visa Center (NVC) is a government agency that is responsible for the pre-processing of all immigrant visa petitions approved by the United States Citizenship and Immigration Services (USCIS) including family sponsored and employment based immigrant petitions of foreign nationals residing overseas. The National Visa Center serves as an intermediary between USCIS, where the immigrant visa petition was first approved, and the U.S. Consulate, where the foreign national will eventually undergo their immigrant visa interview.

Once the I-130 Petition for Alien relative has been approved by USCIS, the application is then forwarded to the National Visa Center located in Portsmouth, New Hampshire where it will be pre-processed and retained until the immigrant visa application is ready to be adjudicated at the foreign national’s closest U.S. Consulate. It takes approximately 30-60 days for an immigrant visa application to be transferred from USCIS to the National Visa Center. The National Visa Center recommends that an applicant wait at least 60 days from the date of the immigrant petition’s approval before calling to confirm the receipt of an application.

The immigrant visa process is a long and tedious one, due to the large volume of immigrant visa applications processed at the National Visa Center and long waiting times to receive an interview at the applicant’s designated consular office.

Before talking about the benefits of consular processing, let’s discuss the main drawbacks:

  • Long processing time of 8-12 months depending on the volume of applications at the NVC and the applicant’s place of residence;
  • No temporary employment benefits, no EAD card privilege;
  • Applicants cannot obtain SSN, driver’s license, or build credit until they have entered the U.S. with immigrant visa;
  • Can be taxing on the relationship if the US Citizen is living and working away from the foreign spouse, and the foreign spouse does not have a valid visa to travel to the United States temporarily;
  • Lengthy and complex process because USCIS, NVC, and the US Consulate are all involved;
  • Consular processing requires the applicant to provide civil documents to the National Visa Center including a police report, military records, court and prison records. It takes time to obtain these documents especially from certain countries;
  • Attorneys cannot attend the interview with the applicant at the US Consulate;
  • If the applicant is denied, there are few options to appeal the decision. In most cases the applicant must seek an alternative or re-apply.

Now let’s talk about the benefits of Consular Processing

The main benefits of Consular Processing are the following:

  • The foreign spouse is free to travel internationally for personal or business reasons;
  • The foreign spouse can continue their employment abroad, while adjustment of status applicants cannot seek employment until they have received the EAD;
  • Filing fees for the immigrant visa are slightly less than for Adjustment of Status;
  • If the foreign spouse has a valid U.S. visa they can travel freely in and out of the United States while their immigrant visa application is processing;
  • The foreign spouse is not required to uproot their life while the immigrant visa is processing. They may live comfortably in their home country until their immigrant visa is approved;
  • The foreign spouse has the freedom of making plans of relocating to the United States only once the immigrant visa is approved;
  • The petitioner is not required to be present at the time of the immigrant visa interview.

Please click here to read more about adjustment of status and consular processing. To discuss what option is right for you please contact us for a free first consultation.