Consular Processing vs Adjustment of Status

immigrant visa through consular processing or adjustment of statusThere are two basic paths for acquiring a family-based immigrant visa and obtaining permanent residence (green card) in the United States: consular processing and adjustment of status.

Each has it’s own advantages. Before your relative attempts to obtain an immigrant visa (green card) in the United States, it is important to understand the basics of consular processing and adjustment of status.

Immigrant Petitions

Before an immigrant can use consular processing or adjustment of status, he or she must have an approved immigrant visa number. The process begins with a petition. For employment-based cases, the employer files Form I-140, Immigrant Petition for Alien Worker. For family-based cases, the process begins with a U.S. citizen or permanent resident filing Form I-130, Petition for Alien Relative, for a family member.

Immigrant Visa Wait Times

Immigrant visa wait time

Under the current U.S. immigration system, immediate relatives have priority status for green cards and have virtually no wait to get a green card application approved. For non-immediate relatives, also known as the family preference category, the process may take up to 10 years. This is largely due to the annual quota (numerical limit) put on each sub category. U.S. Congress limits the number of family preference immigrant visas that may be granted each year.

CategoryEligibilityAnnual QuotaWait Time
IRImmediate Relative: Spouse, minor children, and parents of U.S. citizensNo numerical limitNone*
F1Family Preference: Unmarried sons and daughters (21 years of age or older) of U.S. citizens23,4008–21 years
F2Family Preference: Spouse, minor children (under 21 year old), and unmarried sons and daughters of lawful permanent residents114,2001–2 years
F3Family Preference: Married sons and daughters of U.S. citizens23,40010–22 years
F4Family Preference: Brothers and sisters of U.S. citizens65,00013–24 years

*There is no quota for the immediate relative visa category, but the Form I-130 may take several months (6-12 months) before approval.

To minimize the processing times and wait times, the best thing that can be done is file an accurate Form I-130, Petition for Alien Relative, as soon as possible. The petition is processed on a first-come, first-served basis. So it is important to get onto this wait list early. If the petition is not properly prepared or filed with USCIS, it will likely be rejected. These are sent back to the petitioner, further delaying the process. So it is extremely important that the petitioner present a well-prepared Form I-130 package that is free of errors and inconsistencies.

Immigrant Visa Adjudication

Immigrant visa adjudication is the process of making a decision on the immigrant’s green card application. It’s the final step. And after an approval, a green card can be issued. There are two possible paths for immigrant visa adjudication: consular processing and adjustment of status.

Consular Processing
adjustment of status for immigrant visa at us embassy

If the applicant is outside the U.S., the only path for immigrating to the U.S. is to use consular processing. Consular processing refers to the process of applying for a visa through the U.S. consulate in a foreign country. Because consular processing generally has a shorter processing time (about 4-6 months), it is preferred by some applicants over adjustment of status. What’s more, consular processing has a lower risk of refusal. Unlike USCIS officers, consular officers cannot refuse to issue a visa based on discretion. This means that the consular officer must have specific, factual evidence for denying an application. However, cases that are denied are generally non-reviewable. This means that it is a final decision. Learn more in How to Obtain a Green Card through Consular Processing.

Adjustment of Status

If the applicant is already in the U.S., both consular processing and adjustment of status (AOS) are available options. The primary reason people use the adjustment of status process is that there is no need to return to the home country. It avoids the travel expense and prolonged separation between family members in the U.S. Although the adjustment of status process typically takes longer, it has other advantages. If an AOS case is denied, the applicant may challenge the denial through the administrative and/or judicial appellate processes. Form I-485, Application to Register Permanent Residence or Adjust Status, is used to adjust status to permanent resident if you are already in the United States. Learn more in How to Obtain a Green Card through Adjustment of Status.

An Important Note About Visa Fraud
When United States grants a foreign alien a tourist visa or some other non-immigrant visa, it does so with the understanding that the visitor intends to return to the place of origin. However, if a foreign alien uses a non-immigrant visa as a way of gaining U.S. entry with the actual goal of adjusting status, the U.S. government considers this visa fraud. In this circumstance, the government is likely to deny a green card based on the misuse of the non-immigrant visa.

Your relative should not travel to the U.S. on a temporary visa with the intention of staying permanently because you will file Form I-130 and I-485. This is considered a misuse of the visa and the green card application will most likely be denied.

Unlawful Presence Waiver

Immigrants that have overstayed a visa or have otherwise accrued unlawful presence in the United States may be subject to a three or ten-year bar if they leave the U.S. for consular processing. Certain immediate relatives of U.S. citizens with this unlawful presence may apply for a provisional unlawful presence waiver, also known as a stateside waiver. If approved, these individuals may return to their home country with reassurance that the their unlawful presence will not be used as a reason to deny their green card.

Consular Processing or Adjustment of Status — Which is Best?

When it comes to consular processing and adjustment of status, there is no absolute better path. Do your research to learn which is the best process for your situation.

About CitizenPath

CitizenPath is the online service that makes immigration forms simple. The website provides simple, step-by-step guidance through USCIS applications and petitions. The low-cost service helps to simplify the process by explaining each question and providing alerts if your answer to a question could be a problem. Most people do not need a lawyer to prepare USCIS forms, but many need a little assistance. That’s where CitizenPath can help. CitizenPath provides support for the Petition for Alien Relative (Form I-130), Citizenship Application (Form N-400), Green Card Renewal (Form I-90), and several other popular forms.

Source: USCIS