What's Better: Adjustment of Status or Consular Processing for Marriage-Based Green Card?

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If you are applying for a green card based on marriage, and you live in the U.S. and are eligible to apply for adjustment of status (as discussed in the article, "When Adjustment of Status Is Possible for the Immigrant Spouse of a U.S. Citizen"), should you choose this procedural route? Or are there situations where choosing consular processing is better (in which you submit the latter portion of your paperwork to, and attend an interview at a U.S. consulate in your home country)?

For most married applicants, staying in the U.S. and adjusting status is the preferred way to obtain permanent residence. Assuming the immigrant is already living in the U.S. with his or her U.S. spouse, it avoids a trip overseas -- potentially for two people, though the U.S. spouse would not be required to attend the visa interview. The U.S. spouse IS required to attend the adjustment of status interview, and many couples find it's easier to convince the government that a marriage is the real thing with both people there. (On the other hand, it's also easier for the government to catch the two of you in an inconsistent statement.) 

Also, the immigrant will receive a work permit during the time the application is pending at USCIS -- particularly useful if the U.S. petitioner/sponsor's income is borderline, and you need a supplementary source to avoid the "public charge" ground of inadmissibility. Finally, you will be able to hire a lawyer to represent you in your adjustment of status case, including attending the interview if you and the lawyer feel it's necessary or appropriate.

However, a second option for people who haven’t overstayed their visa by six months or more is to leave the United States and apply for a green card at a U.S. consulate overseas.

At the time article was posted, applications to adjust status in the U.S. were taking between four and seven months at the various USCIS district offices. If the processing time were to lengthen -- as it has in the past -- applying at a consulate could turn into a quicker way to get your green card. Or, you might prefer to apply at a consulate if, for personal reasons, you need to leave the U.S. right away and cannot wait for the processing of an adjustment of status application and a travel permit. Although the application process through an overseas consulate often takes close to a year, some consulates are much more efficient and can approve you for a green card in a matter of a few months.

Contact the U.S. consulate in your home country to find out how long its application and approval process takes. Also, ask other immigrants about their experience with that consulate, or talk to an immigration lawyer. (Note: You can't pick and choose which U.S. consulate to go to -- you must use the one in your home country, unless there's some compelling reason to go elsewhere, such as broken diplomatic relations between your home country and the United States.)

To find out how long your local USCIS office is taking to process applications for adjustment of status, go to the "USCIS Processing Time Information" page of www.uscis.gov, choose your local field office from the drop-down menu, and click “Field Office Processing Dates.” In the table that appears, you’ll find the I-485 processing time frame. (Sometimes it will state the number of months -- other times it will list the submission dates of the applications that it is just now getting to, so you'll have to do the math.)

Keep in mind that if you choose consular processing, and your application gets delayed or the consulate asks you to supplement your application before it will approve it, your overseas stay could last longer that projected.

caution

CAUTION

There are some immigrants who should not leave the U.S. to apply for their green card, no matter how efficient their consulate will be. These are the people who have stayed past the expiration date on their visa by six months or more, or otherwise accrued unlawful presence in the United States. Such people could be found inadmissible and prevented from returning for three or ten years, as described in "Consequences of Unlawful Presence in the U.S.--Three- and Ten-Year Time Bars." Effective March 4, 2013, there will be a new provisional unlawful presence waiver available for certain immediate relatives of U.S. citizens. Those who are approved for this "stateside" waiver will get reassurance that the time they spent illegally in the U.S. will not be used as a ground to deny their green cards before they depart for the consular interview. To learn more, see "Who Is Eligible for Provisional Waiver of the Three- or Ten-Year Time Bar."

caution

CAUTION

Carry proof of when you depart the United States. If you decide to apply for your green card at a U.S. consulate, your history of U.S. visits will trigger a request that you prove you left on time. Collect and keep all evidence, such as your plane tickets, store receipts, medical records, credit card statements, and anything else relevant.

by: , J.D.

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