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A common question I get in consultations weekly is whether an individual should pursue residency or green card status through filing an Adjustment of Status case in the United States, or by pursing Consular Processing from their home country.
This is a great question as some people have the option to choose and some people don’t. So, it’s best to know which group you fall into. In this blog, we will review the basic processes of the two ways to obtain residency status, as well as discuss the pros and cons of pursuing either option.
Adjustment of Status
An adjustment of status, commonly abbreviated as AOS, is the process by which an individual who is inside of the United States can file for residency on the basis of an approved or simultaneously-filed immigrant petition (I-130, I-140, or I-360). Although there are a few exceptions for immediate relatives (spouse, minor child, or parent of a US citizen), an applicant for AOS must:
Generally speaking in regards to admissibility, an AOS applicant cannot have any disqualifying criminal or immigration history that would render them ineligible for residency status, and they must demonstrate they will not become a public charge in the US.
An applicant for AOS must be physically in the United States at the time of applying, and continually reside in the US throughout the adjudication of the case. If he or she needs to depart while the case is pending, he or she can only do so with advanced parole, a travel document, which can be applied for in conjunction with the Adjustment of Status application.
When a residency applicant is outside of the United States, or not eligible to adjust status because he or she does not meet the basic requirements listed above, he or she can pursue consular processing.
Consular processing is the process of filing for an immigrant visa at the US consulate in the country of residence of the applicant. The applicant applies for an immigrant visa from their country of residence. Once the applicant enters the US on that immigrant visa, their status is automatically changed in the USCIS system to that of a lawful permanent resident or green card holder.
While entering on the immigrant visa means that the applicant is automatically a lawful permanent resident and can live and work as such, they typically receive their original green card in the mail within a few months of entry into the US, but they will have a temporary stamp in their passport from entry that grants them the status.
On its face, many individuals I consult with seem to prefer filing the adjustment of status application over the consular processing application because it allows the applicant to remain in the US while the case is pending.
Processing times can be a little faster for the adjustment of status filing, depending on the field office where you will be interviewed but that can vary. Two additional benefits for the adjustment of status applicant while the case is pending are employment authorization, ability to work lawfully in the U.S., and advanced parole, ability to travel internationally and return to the U.S.
To clarify, an adjustment of status applicant cannot work, unless he or she has other employment authorization through an underlying status, or travel internationally until the employment authorization and advanced parole applications are approved. It is important to understand that while someone awaiting adjudication on their adjustment of status application will be considered in lawful status while the application is processing, he or she will not be able to work or travel internationally for that length of time while the benefits are pending.
Additionally, and something important to consider, depending on the visa that one uses to enter the US, it’s not always advisable to pursue an adjustment of status application. Certain nonimmigrant or temporary visas carry with them “nonimmigrant intent,” meaning that the visa holder upon entry into the U.S. must have no intent to pursue permanent status through residency in the U.S.
The biggest downside to consular processing cases is often the length of time they take from start to finish to be processed and adjudicated by USCIS and the local consulate or embassy. For those who wish for time to finish any projects they have going on or wrap up their affairs, this is welcome time, but for many others, including newlywed spouses, the wait time can seem like an eternity.
Oftentimes, many who hold nonimmigrant visas that are single intent don’t have the choice but to wait, because it is not advisable to enter the U.S. on a B-1 or B-2 visa, for example, when the preconceived intent to pursue an adjustment of status is there.
However, all good things come to those who wait and those who pursue consular processing over adjustment of status are often ensuring they do not have to worry about questions regarding legal entry come up, which can be an issue for those applying for adjustment of status. In addition, they will not have to have their documents translated, as anything in a foreign language of the country where an individual is processing is accepted so long as it’s the official language of that country. The interview will take place in their native language as well, so no need to find and pay for an interpreter.
In all, there are various positive factors and negative factors to either filing an adjustment of status or pursing consular processing. Depending on your immigration history and your current situation, you should go with the choice that is going to be best for you.
Schedule a consultation with the attorneys at Bashyam Shah LLP to discuss your upcoming interview or your future adjustment of status case!