When you apply for a marriage-based Green Card, you will either go through the process of adjustment of status (also known as concurrent filing) or you will go through consular processing. If you are located in the United States when applying, you will go through an adjustment of status. If outside of the U.S., you will go through consular processing.
In both cases, the goal for the applicant is to eventually achieve permanent residence status based on marriage to a U.S. citizen or a permanent resident. Because the stakes are high, applicants should consider using the services of family immigration lawyers to help ensure their applications have the best chance of approval.
Dealing with Situations Beyond Your Control
Adjustment of Status
If you are seeking a Green Card while living in the U.S. and your sponsoring spouse is a Green Card holder, you will be required to go through the adjustment of status process.
However, as the spouse seeking the Green Card, you must maintain a valid immigration status throughout the application process. Various valid immigration statuses include being present in the U.S. under an H-1B work visa, an F-1 student visa, or a tourist visa.
Keep in mind that an important update has occurred this year due to a significant backlog of cases: "Final Action Dates" are no longer current. This means that applicants' cases will only be considered once their priority date is current.
If you are seeking a Green Card but cannot maintain a valid immigration status, you must go through the consular process if your spouse is a Green Card holder. Going through the consular process means you must leave the United States and apply at an embassy or U.S. consul.
If you must apply in this fashion, it is important to know that you must leave the United States before you file your application for an immigrant visa and you must not remain in the country more than six months after your temporary visa has expired. If you overstay, you risk being barred from the U.S. for up to 10 years.
Consular Processing vs. Adjustment of Status: When You Have a Choice
Living in the USA with a Valid Visa: Applying for Permanent Residency
If your spouse is a U.S. citizen and you are present in the U.S. under a valid immigration status, you get to choose between applying under adjustment of process, which allows you to stay in the country, or applying under consular processing, which requires you to leave the country to apply.
Option 1: Consular Processing from Abroad
Because consular processing requires you to leave the country, it is a good choice for foreign spouses who need to spend time in their home country to take care of family business and other issues.
Option 2: Adjustment of Status from Within the USA
If you are interested in remaining in the United States while you go through the application process, you should choose the adjustment of status process. Adjustment of status applicants who are married to U.S. citizens don't have to worry about maintaining a valid immigration status while their application is pending as long as they initially entered the country legitimately.
With that being said, foreigners who marry U.S. citizens or Green Card holders within the first 90 days of being present in the country may face significant legal problems regarding their visa statuses.
Living Together Abroad: Options for Applying for a Spousal Visa
Many foreign spouses seeking Green Cards live with their U.S. citizen spouses outside of the United States and were married outside of the country as well. When this is the case, the couple has a few options available to them for obtaining a Green Card.
Option 1: Applying as If the Sponsoring Spouse Is Living in the USA
When the applicant is living abroad, the National Visa Center (NVC), which is run by the United States Department of State, handles the application. Once the NVC receives the application materials from the United States Citizenship and Immigration Services (USCIS), it will begin processing the file immediately.
Within a few months, the NVC will deliver the processed cased materials to a U.S. embassy or U.S. consulate where the foreign spouse resides. For some couples, the processing time may be shortened by sending application materials to international USCIS offices located in the countries in which they reside vs. USCIS offices based in the U.S.
Option 2: Applying Based on "Exceptional Circumstances"
Certain couples facing exceptional circumstances may be entitled to apply for a Green Card directly to the nearest U.S. embassy or U.S. consulate. Known as Direct Consular Filing, this manner of applying is typically the fastest method of getting a Green Card.
Exceptional circumstances that make a couple eligible for Direct Consular Filing include:
- Sponsoring spouses who are in the military, stationed abroad, and are deployed; or required to transfer in a short period of time;
- Urgent medical treatment in the United States for either spouse;
- Imminent threats to personal safety against either spouse.
Applying under exceptional circumstances can result in processing times of only three months.
Adjustment of Status vs. Consular Processing: Which One Should You Choose?
In the vast majority of Green Card cases, couples do not have the choice of whether to go through adjustment of status or consular processing. This is because the requirements to apply for adjustment of a status far outnumber the requirements for consular processing.
If you do have the choice, it is important to know some of the material differences between the two processes so you can make an informed decision.
Forms and Fees: A Comparison of Adjustment of Status and Consular Processing Fees
The fees for consular processing and adjustment of status vary greatly, as does the time in which they are paid. If you are applying for an adjustment of status, you can expect to pay over $500 more than you would if going through the consular process.
Currently, consular processing fees add up to $1,200, whereas adjustment of status fees total $1,76o. One reason for the divergence in fees is the cost of the application. With the adjustment of status, applicants must file Form I-485, which costs $1,140 in fees. Applicants utilizing consular processing need to file Form DS-260, which costs only $325.
Additionally, fees for adjusting status are paid up front, but fees for consular processing may be spread out during the processing of the application.
Travel Considerations: Can You Travel While Waiting for Consular Processing or Adjustment of Status?
The question "Can I travel while my adjustment of status is pending?" is a common one. The answer is yes but with conditions. First, you must obtain the appropriate travel authorization before you travel.
To acquire this authorization, an applicant must file Form I-131, which is the Application for Travel Document, at any time while the application is pending approval.
Failure to request and receive this approval leads to the applicant being considered to have abandoned the adjustment of status application and the Green Card process. This in turn can result in the applicant being barred from reentry into the United States.
Hence, it is of utmost importance to file Form I-131 and receive permission before you depart the U.S.
Processing Times: Which Is Quicker — Consular Processing or Adjustment of Status?
Each case is unique, and processing times typically vary from case to case. With that being said, applicants who use the adjustment of status vs. consular processing have longer wait times in general.
The processing time for adjustment of status will take anywhere between 8 and 14 months. However, the Green Card consular processing timeline is a few months shorter — between 5 and 12 months — while direct consular processing takes even less time at around 3 months.
Although adjustment of status processing takes longer, the benefit of choosing it is that it allows foreign spouses to remain in the United States while seeking to obtain permanent residence status.
Decisions and Appeals: Understanding the Finality of Green Card Decisions
How Green Card decisions are made depends on the process you choose for your application. If you are applying under adjustment of status, it is important to know that the USCIS has the authority to deny your adjustment of status for discretionary reasons.
However, consular processing requires that the consular officer have identifiable facts to point to as reasons for denying an immigrant petition.
Additionally, applicants should know that consular decisions regarding an immigrant visa application are usually non-reviewable and thus final. However, immigrant visa petition decisions are reviewable under the adjustment of the status process by way of administrative hearings or judicial processes.
Can I apply for consular processing and adjustment of status concurrently in the U.S.?
No. concurrent filing is not allowed. You must choose either adjustment of status or consular processing — you can't choose both.
How can I change from consular processing to adjustment of status?
If you started out choosing consular processing, you can change to adjustment of status processing. You simply file Form I-485, Application to Adjust Status, and the USCIS will take over the case from the NVC.
How to change from adjustment of status to consular processing
You can change from adjustment of status processing to consular processing by filing Form I-824 and requesting the change. However, you will likely have 5 to 10 months added to your processing time by doing so.
Is traveling to the U.S. allowed for the purpose of adjustment of status?
In general, traveling to the U.S. to apply for adjustment of status processing is a violation of your nonimmigrant visa. You may travel to the U.S. only for the purposes outlined in the visa, such as studying or working.
Will I be eligible for EAD and advance parole with consular processing?
No. An employment authorization document (EAD) and advanced parole are not available through consular processing. However, they are available if you go through an adjustment of status.
Can I apply for consular processing or adjustment of status while outside the U.S.?
You may apply for consular processing while you are outside of the United States, but you may not apply for adjustment of status processing while you are outside of the United States.
Whether you use adjustment of status or consular processing depends on your location.
While in the U.S. on a valid nonimmigrant visa, such as a visa granting employment authorization, you can file to adjust your status without leaving the country. However, if you are outside the U.S., you will have to go through consular processing at an embassy or U.S. consulate.
Because the process is so detailed, it's a good idea to consult with SimVisa, a Chicago-based law firm with clients across the nation and a 99% success rate. Contact us for help making your dreams come true.