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Ask Mr. Shusterman: Adjustment of Status vs. Immigrant Visa

When trying to obtain a green card, there are two options you can consider. You can apply for (1) Adjustment of Status inside the U.S. or you can apply for (2) an Immigrant Visa at a U.S. Consulate abroad. While both routes allow you to obtain a green card, there are some considerable differences.

Adjustment of Status

You can apply for Adjustment of Status if you are in the U.S. and meet certain requirements, most importantly that you entered the U.S. lawfully and never violated your immigration status. There are some exceptions, however, as it is still possible to be granted adjustment of status even if you violated your immigration status as long as you qualify under section 245(i) or 245(k) or are an immediate family member of a citizen.

If you are eligible for adjustment of status, you can avoid the time and expense of returning to your home country for consular processing. At the time of filing, you may also be able to apply for a temporary work permit (EAD) and a travel permit (Advance Parole).

USCIS usually interviews those with family-based cases. Upon the completion of a satisfactory interview, along with the fulfillment of all other requirements, you will then receive a written decision in the mail. Those with employment-based are seldom interviewed, and will usually receive a response to their applications by mail.

Immigrant Visa

If you are not qualified for, or do not wish to apply for, Adjustment of Status or you are residing outside of the U.S., you may apply for an immigrant visa through a U.S. Consulate abroad, a procedure called Consular Processing. Eligibility for obtaining your immigrant visa this way is determined by priority dates and quotas of eligible persons for your home country, posted monthly by the State Department in the Visa Bulletin. However, if you are an immediate relative of a U.S. citizen—a spouse, child (unmarried and under the age of 21) or parent—you are exempt from these quotas, and can usually receive an immigrant visa readily upon completion of the application and interview process.

One drawback of applying for your visa through consular processing is that if you have accrued unlawful presence in the U.S., you may be barred from re-entering the U.S. If your “unlawful presence" was for more than 180 days, you will be barred from re-entering the U.S. for 3 years. If your “unlawful presence" was for over one year, you will be barred from re-entering the U.S. for 10 years. An important exception is that if you left the U.S. prior to September 27, 1997, you will not be affected by this law.

If you choose to obtain your immigrant visa through Consular Processing, your application will be reviewed at a consulate in where you reside or last resided. However, a consulate in a third country may be used in special circumstances. The application process will initially take place through the National Visa Center (NVC). The government is currently transitioning to an online system, so if you are filing in Mexico, Canada, or in a handful of other countries, you must use the online system. For most countries, you must file a paper application along with original documents by mail to the NVC. If your visa is available for processing, you will be asked to submit the necessary paperwork for your interview, and once the NVC has all the necessary documents, the consulate will schedule you for an interview. If you are granted an immigrant visa, the consular officer will give you a visa packet. Don’t open this packet, but give it to the Customs and Border Protection Officer when you arrive in the U.S. Within 30 days, you should receive your Green Card by mail.

Advice

Adjustment of status is generally faster and easier than consular processing, and allows you to remain in the U.S. during the application process. Thus, we usually recommend that our clients adjust their status in the U.S. The problem is that some persons are ineligible for adjustment of status, perhaps because of unlawful entry, visa overstay, or working without authorization. Sections 245(k) and 245(i) offer some exceptions to these rules and allow a qualified applicant to remain in the U.S. to adjust status regardless of their prior infractions.

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