 THE ABC'S OF IMMIGRATION - CONSULAR PROCESSING VERSUS ADJUSTMENT OF STATUS
There are two methods of securing permanent residence in the US once a person is approved for immigration. One is called consular processing; the other is adjustment of status. As the name implies, in consular processing the applicant applies for and processes an immigrant visa at a US consulate abroad, most often in their home country. Adjustment of status is the process by which a person already in the US has their immigration status adjusted to that of a permanent resident. The applicant determines the desired method of processing at the time the initial petition for classification as an immigrant is filed.
Consular Processing
In consular processing, the INS forwards the approved immigrant petition to the National Visa Center (NVC), which is part of the State Department. When an immigrant visa number becomes available, the NVC generates a collection of documents known as Packet 3. Packet 3 includes the State Department form for applying for an immigrant visa, an affidavit of support, which must be filed in all family cases and in some employment-based cases, and instructions on the process.
The applicant must complete the forms and return them to the appropriate consulate. The applicant must also gather documentation, including a passport, birth certificates, police certificates, court and prison records if relevant, military records if relevant, and marriage and divorce certificates for each person immigrating. Upon receipt of the forms and notification that the applicant has obtained all necessary documentation, the consulate will issue what is known as Packet 4. Packet 4 includes the time for the visa interview appointment, as well as information on obtaining the required medical examination.
If the application is approved, the person will be issued an immigrant visa, which is good for only six months. If the person does not enter the US within that period of time, the visa will expire and the opportunity to immigrate will be lost.
If the application is denied, the principle consular officer at the post reviews it. If the officer desires, he can get a second opinion from the State Department. However, if, after this point, the denial is upheld, there is no recourse for the applicant.
Consular processing was once the only way to obtain an immigrant visa, as there was no adjustment of status process. When adjustment of status was created, it became tremendously popular, due in large part to the reentry bars that were created in 1996. However, as INS backlogs have grown longer and longer, more and more people are looking at consular processing to speed the process.
Adjustment of Status
A person applies for adjustment of status with the INS from within the US. Along with the adjustment form, results of a medical examination, an affidavit of support, if required, evidence of the approval for immigration and a copy of the applicant’s passport must be submitted. Evidence of any familial relationships must also be submitted, if family members are seeking to adjust their status with the principle applicant.
If the applicant wishes to work or travel abroad while the adjustment of status application is pending, additional forms must be filed. A person is work and travel authorized for only one year at a time, so in many cases, because of INS processing delays, the applicant must renew these documents.
Not all adjustment of status applicants are interviewed, although the law provides that any adjustment applicant may be interviewed. Interviews are always conducted in marriage cases, but are less frequent in other family relationships. Interviews are quite rare in employment-based cases.
After approval for adjustment of status, it takes some months before the physical green card is obtained. If the approval follows an interview, the INS will stamp the applicant’s passport with an indication that they are a US permanent resident. If there is no interview, the applicant will receive a notice that the application has been approved, which they can take to a local INS office and obtain the stamp. A few months later, they will receive the green card. Choosing Between Consular Processing and Adjusting Status Deciding whether to pursue consular processing or adjusting status can be a difficult choice. The chief advantage of consular processing is speed. Consular processing is generally much faster than adjusting status. Six to eight months is not unusual compared to one to three years at various INS offices around the US. Adjusting status has several advantages. First, processing can take place with no traveling abroad. Also, the applicant can work while waiting for processing to take place. Finally, processing in the US means that potential bars on reentry can be avoided that might prevent consular processing. The question often arises over whether it is possible to pursue BOTH consular processing and adjustment of status simultaneously. The question is controversial. There is no statutory bar to processing both ways, but the INS takes the position that if it learns that one is pursuing both consular processing and adjustment of status at the same time, it will consider an adjustment application abandoned. This would typically arise when someone is in the process of adjusting status and files a request with the INS to cable an approval notice to a consulate to initiate consular processing. However, the issue will typically not arise in the reverse circumstances – when one begins with consular processing and then decides to pursue adjustment of status.
| 
