There are a variety of pathways that people can take when immigrating to the United States through lawful means, two of which include “consular processing” and “adjustment of status.” Eligible foreign citizens may have the opportunity to leverage one or both of these methods to apply for a green card or immigrant visa, depending on where they live when applying for their visa or green card. But what do each of these processes entail? And how are they different from one another?
In the article below, our expert immigration lawyers from Burdner Law will explore the key differences between these processes, what each one entails, and who qualifies to leverage each on their journey to become permanent American residents. Please continue to find out more, and also consider browsing through our selection of other educational resources covering other key immigration topics.
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In short, consular processing is the traditional method of seeking and obtaining a green card or visa by those currently living outside of the United States, usually in their country of origin, using either petition Form I-140 (employment-based) or Form I-130 (family-based). The process requires people to go through a U.S. Department of State consulate abroad to apply for the needed documentation and permissions to immigrate to the United States.
During this process, individuals will need to wait in their home country until their visa or green card is approved. All applications from abroad involved in consular processing are handled by the National Visa Center (NVC) branch of the U.S. Department of State.
The total processing time for consular processing largely depends on whether an immigrant is applying for a visa or green card using the I-140 petition or the I-130 petition. Those seeking a visa for employment can typically expect to wait four to six months. However, that can be drastically reduced to only fifteen calendar days if an individual pays some additional filing fees to have their petition classified under “premium processing.”
For an I-130 petition, petitioners can generally expect to wait for between five months to a year if they are immediate relatives of a green card holder (beneficiary). However, the process can vary significantly depending on the relationship between the petitioner and the beneficiary.
To go through Consular Processing, you’ll need a wide selection of essential documents, including;
Ensure you provide all of the documentation needed for consular processing to help prevent delays and increase your odds of petition acceptance.
While those going through a petition for consular processing are not explicitly forbidden from traveling while their application is pending, it can be challenging to travel to the United States for even a short trip, even if they possess a valid tourist visa. Doing so may also jeopardize future eligibility for a green card or visa application if they somehow misrepresent their reason for traveling.
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Suppose an individual already lives legally inside the United States. In that case, they can go through an adjustment of status to apply for a visa or a green card to become a lawful permanent resident directly through the USCIS, rather than return to their home country to petition through a consulate. In short, the adjustment of status process allows people within the United States to change their nonimmigrant immigration status to permanent resident. This option is only available for individuals already living in the U.S., though they may also have the opportunity to undergo consulate processing.
To be eligible to file for an adjustment of status, an individual;
A petition for an adjustment of status typically takes longer than a petition done through consulate processing. The time between application and approval generally ranges between eight to fourteen months. However, because individuals filing for an adjustment of status are required to live within the U.S., they may remain with family members and even work (if given authorization).
Consular processing and adjustment of status are complicated processes that can be difficult for people to navigate on their own, especially if they have no legal experience within the realm of immigration. It’s always a wise idea to hire an experienced attorney to review your documentation before submitting them to help ensure that all paperwork is in order and that nothing critical is missing.
In short, applying for a green card from within the United States is called an adjustment of status. In contrast, the green card (or permanent resident card) itself is a document that allows individuals to live and work within the United States permanently.
Those going through an adjustment of status are required to remain within the United States until they receive a viable travel permit or “Advance Parole Travel Document.” It’s generally recommended that anyone undergoing an adjustment of status remains in the U.S. to ensure they are present for all needed appointments or interviews. However, these can also be conducted at U.S. embassies or consulates.
Yes, the USCIS can deny an adjustment of status application for various reasons. For example, they may deny your adjustment of status if you fail to provide them with all of the required documentation needed for application approval or if they find any incorrect information in the documentation you provide. They can also deny someone’s adjustment of status if they do not meet specific income or health requirements or have a history of criminal issues or immigration violations.
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Anyone classified as a non-citizen of the United States who is otherwise eligible to apply for certain employment-based visas can seek an adjustment of status as long as their entry into the U.S. was lawful and any unauthorized employment didn’t exceed the aggregate period of 180 days. If an individual eas illegally employed for more than that aggregate period, they won’t be eligible to apply for an adjustment of status. There is an exception to this rule for immediate relative Green card petitions.
The process of going through an adjustment of status is complicated and has some notable drawbacks that people should be aware of. However, it also features a wide array of advantages that people should know about before deciding whether or not to undergo the process. These various pros and cons include;
Whether you’re about to undergo consulate processing or an adjustment of status, it’s always good to work with an experienced immigration attorney to help ensure you’re handling everything you need for the best possible chance at success. Please consider contacting our team of specialized immigration attorneys at Brudner Law today to learn about how we can help you going forward.
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