Consular Processing v. Adjustment of Status for spouse what is faster?

by

In this video, attorney Jacob Sapochnick discusses a hot topic addressing what is the fastest method to immigrate a foreign spouse to the United States.

Many couples often wonder what the best option is to immigrate their foreign spouse, such as applying for an immigrant visa at a U.S. consulate overseas or applying for adjustment of status from inside the United States.

To learn more, please keep on watching this video.

Overview

There are two main methods by which a U.S. Citizen can immigrate his or her foreign spouse to the United States.

The most suitable method will depend on the consideration of various factors such as:

  • Is the foreign spouse currently outside of the United States?
  • Is the foreign spouse already inside the United States in lawful status (for example are they on an F-1 student visa, B-1 business visitor visa, or some other temporary visa)?
  • Does the foreign spouse have lawful status in the U.S.?
  • Is it important for you to obtain employment authorization during the immigration process?
  • Is prolonged separation an issue for you?

These are important factors that will determine which process married couples may wish to consider.

What is the difference between Adjustment of Status and Consular Processing?

First, let’s discuss what is the difference between adjustment of status and consular processing.

Consular Processing

Consular processing refers to the process of applying for an immigrant visa at a U.S. Consulate or Embassy overseas. This process is most suitable for foreign spouses who are outside of the United States, who are residing overseas.

Step One:

The first step to initiate Consular processing is for your U.S. Citizen spouse (also known as the “petitioner”) to file Form I-130 Petition for Alien Relative with the U.S. Citizenship and Immigration Services (USCIS) on your behalf. The I-130 will establish that you have a qualifying relationship based on your marriage to a U.S. Citizen. As the foreign national, you are considered the beneficiary of the I-130 petition, while the U.S. Citizen is considered the petitioner.

The I-130 petition will require the petitioner to indicate that the beneficiary will apply for an immigrant visa abroad at the U.S. Consulate or Embassy in their home country.

Currently, it is taking USCIS approximately 12-14 months to process the I-130 petition for alien relative.

Step Two:

Once the I-130 petition has been approved by USCIS, your case will then be sent to the National Visa Center (NVC), which is responsible for collecting additional supporting documentation from you and your spouse to prepare your application for processing.

The National Visa Center (NVC) functions as an intermediary between USCIS and the U.S. Consulate or Embassy where the beneficiary will be interviewed.

It can take up to 60 days for the NVC to receive your case from USCIS.

Once the beneficiary has submitted all necessary documentation to the National Visa Center (NVC) (this is known as being documentarily complete), the case will be sent to the closest U.S. Consulate or Embassy for interview scheduling.

The U.S. Consulate or Embassy will notify the beneficiary once their interview has been scheduled, including instructions regarding the supporting documentation they must bring to the interview.

The amount of time that it can take for your interview to be scheduled depends on many different factors, such as the volume of applications waiting for interview scheduling at that particular Consulate or Embassy,

Step Three:

Once the interview is scheduled, the beneficiary will appear at the in-person interview and present supporting documentation to show that they have a bona fide marriage.

Thereafter, the Consular officer will issue a decision. If approved the Consulate will collect the beneficiary’s passport to print the immigrant visa stamp inside. Then the beneficiary will be notified when they can retrieve their passport.

Once the immigrant visa is issued, the beneficiary is given a 6-month period to enter the United States. After the beneficiary’s entry, it can take USCIS up to 90 days to issue the permanent resident card by mail.

Consular Processing Timeline

In general, consular processing can take on average anywhere from 2 to 3 years to be completed. Due to the lengthy waiting period for consular processing, many couples opt to do adjustment of status instead – which is the same green card process except the beneficiary completes the process from inside the United States.

Adjustment of Status

Adjustment of status is the process by which a foreign national (beneficiary) can apply for lawful permanent resident status (a Green Card) while being present in the United States.

Those who are eligible for adjustment of status can apply for their green card (Form I-485) with the U.S. Citizenship and Immigration Services (USCIS) without having to depart to their home country to apply for a visa abroad.

As a general matter, to be eligible for adjustment of status you must:

  • Have entered the United States lawfully, after being inspected and admitted to the U.S. at a port of entry. Note: If you came into the United States without admission or parole, you must consult an immigration attorney to determine the appropriate legal avenue for you.
  • Be the beneficiary of an approved I-130 Petition for Alien Relative, filed by your U.S. Citizen spouse with the U.S. Citizenship and Immigration Services (USCIS)
  • Not have any disqualifying criminal history, otherwise constitute a threat to national security or public safety, nor have any issues of inadmissibility

Accordingly, this option is most suitable for beneficiaries lawfully admitted to the United States on a valid visa type who are residing inside of the U.S.

Visa Overstays

Please note that if you first entered the country lawfully on a valid visa, but later overstayed the duration of your visa, you may still adjust your status despite the overstay so long as you are married to a U.S. Citizen.

90-Day Rule

Applicants should be aware that there is a 90-day rule in immigration which automatically presumes that nonimmigrant visa holders who marry or apply for a green card within 90 days of entering the country have misrepresented their intentions. In such a case, an immigration official may find that the foreign national is not eligible for adjustment of status and serious consequences may result. Therefore, applicants should be careful not to marry or apply for a green card within the 90 days of their entry.

Step One:

The first step to apply for Adjustment of Status is for your U.S. Citizen spouse (also known as the “petitioner”) to file BOTH the Form I-130 Petition for Alien Relative and Form I-485 Application to Register Permanent Residence or Adjust Status, along with the supporting documentation with the U.S. Citizenship and Immigration Services (USCIS).

As with consular processing, the I-130 will establish that you have a qualifying relationship based on your marriage to a U.S. Citizen. As the foreign national, you are considered the beneficiary of the I-130 petition, while the U.S. Citizen is considered the petitioner. The I-485 is the beneficiary’s request for adjustment of status to permanent residence.

In addition to these forms, the beneficiary can also apply for work and travel authorization with USCIS by submitting Form I-131 Application for Travel Document and Form I-765 Application for Employment Authorization and paying the appropriate filing fees.

This will allow USCIS to issue the beneficiary a work and travel permit while the green card application is pending with USCIS.

International Travel Prohibited

The beneficiary is prohibited from traveling outside of the United States without a travel permit from USCIS. Leaving the United States without a travel permit means that you will abandon your adjustment of status application. You are free to engage in international travel only once your travel permit has been issued by USCIS.

Immigration does not allow re-entry after foreign travel even for emergency reasons without a travel permit.

Step Two:

Once these forms are filed with USCIS, the applicant will receive a biometrics appointment notice where he or she must appear for a photo and have their fingerprints taken for a background check.

Step Three:

After several months, USCIS will issue the work and travel permits to the beneficiary by mail. The beneficiary can apply for a Social Security Number and obtain a state driver’s license by showing the work permit.

Step Four:

Once the applications have been processed, the couple will receive an interview appointment notice from USCIS. The couple must appear for the in-person interview and provide supporting documentation in support of their bona fide marriage. In certain instances, the in-person interview may be waived. If an interview waiver is issued, you will receive a notice by mail.

Step Five:

The immigration officer will issue a decision and if approved the green card will be mailed to the beneficiary.

Adjustment of Status Timeline

On average, the adjustment of status process can take anywhere from 8 to 12 months depending on the workload of the service center processing your applications and the USCIS office where you will be interviewed.

If prolonged family separation is an issue for you, then adjustment of status is the best option since it takes less time to receive a green card. Additionally, if it’s important for you to obtain employment authorization during the immigration process, then adjustment of status is the most suitable option.

Important Considerations: Weighing the Pros and Cons

If you do not have a valid visa to enter the U.S. and you have not been lawfully inspected or admitted to the U.S., then adjustment of status is not the appropriate process for you. Such individuals will need to apply for their immigrant visa at the U.S. Consulate abroad.

Additionally, if you have obligations that require you to remain overseas throughout the immigration process (such as employment, military service, or studies abroad) then Consular processing might be the best route for you to take because it allows you the flexibility of remaining overseas to handle your affairs until your immigrant visa is issued.

Adjustment of status does not offer such flexibility. In fact, adjustment of status applicants cannot travel abroad until they have received a travel permit from USCIS. This can take several months.

Conclusion

Couples should carefully discuss each process with their attorneys to decide which option is most suitable depending on your unique life circumstances and expectations. Together you can discuss the advantages and disadvantages and come to a conclusion that will best fit your needs.

Contact Us. If you would like to schedule a consultation, please text 619-569-1768 or call 619-819-9204.

Helpful Links

JOIN OUR NEW FACEBOOK GROUP

Need more immigration updates? We have created a new facebook group to address the impact of the new executive order and other changing developments related to COVID-19. Follow us there.

For other COVID 19 related immigration updates please visit our Immigration and COVID-19 Resource Center here.