Adjustment of Status vs. Consular Processing

In general, there are two means of pursuing permanent residency: 1) adjustment of status and 2) consular processing. Usually, there must be an already-approved family- or employment-based immigration petition or an available visa to initiate one of these processes.

Who can Adjust Status?

A person located in the United States adjusts his status from nonimmigrant to immigrant status. This application is submitted together with or after the approval of an underlying family- or employment-based petition. The adjustment application usually includes an application for employment authorization, as well as permission to travel during the pendency of the application (advance parole). In the overwhelming majority of cases, the applicant must be in legal status to submit this application.

Who can Consular Process?

An individual located outside the United States, is unable to adjust status in the US, or prefers to process through a US consular post abroad can initiate the visa process after USCIS has approved a family- or employment-based immigration petition. The process is usually undertaken through the Department of State’s National Visa Center, which receives notification of the approved petition from USCIS. After the fees and necessary documentation are submitted to the NVC, the applicant will undergo an immigrant visa interview at the US consulate outside the United States.

What are some of the problems associated with each process?

Each process presents its own set of challenges. The consular process is more document intensive; for example, the Department of State requires police certificates from each country of residence from the age of 16, and can require a military certificate and consent from an ex-spouse when a minor child is involved. The adjustment of status process can be extremely inconvenient if advance parole is required to travel. All consular processed individuals are required to go through a visa interview, while USCIS usually does not interview employment-based adjustment applicants. The rules for adjustment can be very complicated, particularly for those who have not always maintained their status (e.g., worked without authorization). An administrative review process after a visa interview may strand the applicant outside the US indefinitely.

How does White and Associates help?

We have been advising individuals for more than 20 years on the adjustment of status and consular processes. Because each process has its benefits and shortcomings, it is wise to consult in advance on how best to proceed. There is no one-size, fits-all answer to this question. The consequences of a mistake or incompetent advice from lawyers and consultants in this regard can be tragic — the cancellation of visas; the imposition of bars to entry; the inability to legalize one’s status in the US. We have seen families permanently separated, individuals unable to return to the US, and parents unable to attend weddings of children who remained in the US and married a US citizen.

In addition to providing important advice, we prepare the necessary forms and guide you through the process until you attain the green card. The adjustment of status and visa applications are time-consuming and critical; one wrongly-checked box can have devastating consequences. The affidavit of support is convoluted and complex. In addition, we help clients obtain police certificates and criminal records when necessary. We can provide assistance to those who did not file a timely application, or cannot use their visas before the expiration date. We can help those outside the US who are being “punished” by consular officers for perceived transgressions of their relative in the US. We facilitate obtaining expedited advance parole for those who need to travel.

Please contact us to find out how we can help you.