Consular Processing vs. Adjustment of Status

There are two “paths” to obtaining permanent resident status in the U.S.: adjustment of status (AOS) and consular processing (CP).

For those already located in the U.S. – who were “admitted” through a port of entry and remain in legal status – they may apply to adjust status (to become a green card holder) when a visa number is available, by submitting an I-485 to the USCIS. This path is called “adjustment of status” or AOS, for short.  There are some exceptions to this rule for eligibility to adjust status in the U.S., so review with an experienced attorney is recommended to find all available options. Typically, adjustment of status is preferable to consular processing due to the availability of (1) being in the U.S., (2) obtaining work authorization, and (3) possibly being eligible to travel and return to the U.S. while the process is pending without abandoning the application for adjustment of status.

For those living outside the U.S. – or who are in the U.S. but not eligible for AOS or have travel or work needs that require consular processing – obtaining permanent residence (green card) will be handled through an immigrant visa process at the U.S. consulate holding jurisdiction. This path is called “consular processing” or CP, for short.

To decide which path to follow, it is important to determine the specific immigrant category for which you may qualify. Many immigrants are eligible for green cards after a petition is filed for them, by a family member or an employer. Family members would file an I-130 Petition for Alien Relative, while employers would file an I-140 Petition for Alien Worker with or without a certified labor certification, depending on the nature of the position and qualifications of the beneficiary. Those who are entrepreneurs (and will invest significant amounts of money in a U.S. business venture) would file their own I-526 Immigrant Petition by Alien Entrepreneur. There are other possibilities of immigrant categories (such as special classes and humanitarian program classes) but these are very specific, and should be fully researched by a qualified attorney.

After determining the appropriate category, the correct petition must be filed. Some people – such as immediate relatives of a U.S. citizen – may be eligible to file their petition at the same time they file their I-485 Application to Register Permanent Residence or Adjust Status (known as a “one-step” filing for immediate relatives or “concurrent filing” for certain employment-based categories).  However, most people must file the appropriate petition first, then file the I-485 second.  For those who must file separately, you must wait until an immigrant visa is available for your category, prior to filing the I-485.

To determine when a visa is available, one must look at the classification of the immigrant visa and the dates listed in the U.S. Department of State’s monthly visa bulletin. For consular processing, notification of receipt of your approved petition will come from the National Visa Center, and then typically proceeds when the immigrant visa is close to becoming available. Note, however, for those who are waiting outside the U.S. for immigrant visa consular processing, or for those who wish to wait in the U.S. until the immigrant visa processing application is close to becoming available before departing, the processing times of available immigrant visa numbers ebb and flow with the priority dates listed on the Visa Bulletin, published by the Department of State.  This means that the immigrant visa number processing time frames can proceed monthly by a few days or weeks, remain static and not change from a previous month’s listing, or actually recede and become more backlogged than previously published, within any classification.

Following the filing of an application to adjust status in the United States, a notice of receipt is mailed and then a separate notice for the applicant’s picture and fingerprints taken at an Application Support Center.  This information is used to conduct security checks, and for the creation of the green card, work permit, or advance parole document. If the applicant is required to appear for an interview, he or she will be notified by mail. (Consular Processing applicants will be notified by the National Visa Center to pay an immigrant visa fee, provide Department of State forms, and follow through with required original and certified documentation for the immigrant visa process).

Always attend all interviews, along with the family member who filed an I-130 petition for you (if applicable).  Check with an attorney if the sponsoring petitioner is unable to attend the interview scheduled in the US, while note that the petitioner is not required to be present and sometimes is not allowed to be present at the US Consulate located in a foreign country for a consular processing applicant.

If in the U.S., bring the original of all documents including current and expired passports, travel documents, and I-94 if still located in the passport, even if the document has expired, and updated letters of employment or more recently filed tax returns if initially submitted with previous year’s documentation.

Note also that as of June 1, 2015, USCIS will require a new sealed medical form, Form I693, if it has been one year or more since the previously submitted medical form was last obtained and sealed.

For AOS applicants, the final decision of your application will be received in the mail. For CP applicants, if approved, you will be given, mailed or directed to pick up at specific Postal location the passport with visa stamp and “Visa Packet” by the consular office; do not open this packet, give it to the Customs and Border Protection officer at the port of entry. 

There is a new fee as of 2013 required to be paid prior to entry to the U.S. as an immigrant, in order for the green card to be made. You may pay the fee on USCIS’ website. Your green card should be mailed to the applicant within 30-60 days upon arrival in the U.S.   If the green card is not received within this time frame, the applicant should contact USCIS or seek assistance through a knowledgeable attorney.

Waivers of Inadmissibility

If an applicant for admission to the US, either through an immigrant visa issued by a US Consulate or through adjustment of status while in the US, is found inadmissible for health, criminal, material misrepresentation or other grounds under the federal regulations, a waiver request may be filed in certain circumstances in order to seek approval to overcome the ground of inadmissibility. The following conditions may be waived for eligible applicants:

  1. Communicable diseases and other health related grounds: Individuals ineligible for communicable diseases may obtain waivers if they are the immediate family members U.S. citizens or are VAWA petitioners. Criteria for waivers vary depending on the communicable disease or health related ground in question.
  1. Criminal activity: If at least 15 years have passed since the criminal activity and you can prove the waiver will not be contrary to the national welfare, safety, or security of the U.S.; you may be eligible for a waiver. Other criteria exists for those with qualifying relatives, those who engaged in prostitution, and also for VAWA petitioners.
  1. Immigration fraud: If you have a qualifying relative or are a VAWA petitioner you may be eligible for this waiver.
  1. Membership in a totalitarian party: If you have a qualifying relative a waiver may be granted for humanitarian purposes, to assure family unity, or when it is in the public interest and does not pose a security threat to the U.S.
  1. Unlawfully smuggling aliens: In certain situations this waiver may be granted for humanitarian purposes, to assure family unity, or when it is in the public interest and does not pose a security threat to the U.S.
  1. Unlawful presence with qualifying relative:  immediate relatives of U.S. citizens who will suffer extreme hardship if they are banned from receiving permanent residence, but who are present in the U.S. unlawfully, may file a waiver.

Waivers may also be available for applicants who are inadmissible based on the following INA sections:

  1. 3 or 10 year bars, 121(a)(9)(B)(v)
  2. TPS Applicants, 244(c)(2)
  3. Prior Removal, 212(a)(9)(A) or Unlawful Presence after Previous Immigration Violations, 212(a)(9)(c)
  4. VAWA Self-Petitioners, 212(a)(9)(C)(iii)
  5. T Nonimmigrants, most grounds listed in 212(a)

Many waivers require a qualifying family relationship and some also require a showing of extreme hardship. USCIS considers the following factors in determining the extent of hardship:

  1. Health: Whether medical treatment is available in the applicant’s home country and the duration of the health problem and treatment.
  2. Finances: Employability, loss of home, business or professional practice, decline in standard of living, and the ability to recoup short term losses.
  3. Education: Loss of opportunities for formal education and lack of training.
  4. Family and Community: Proximity to relatives, separation from children, and community ties in the U.S.
  5. Other factors include support structures, social institutions, cultural, religious, ethnic obstacles, and fears of persecution, harm, or ostracism.

Applicants must complete a Form I-601 to request an applicable waiver.  The I-601 waiver application is available to applicants who are in the US seeking adjustment of status, and it is also the form used for applicants who have left the US or who have never entered the US, but who have issues of inadmissibility.

The immigrant visa process requires anyone who is outside the US to seek an immigrant petition through consular processing, and any applicant can receive a denial determination due to an issue of inadmissibility, and then be advised that a waiver is available.  However, if a beneficiary of an immigrant petition is in the US, the former process for a person who was ineligible to adjust status would require him or her to leave the US, appear in person for the immigrant visa interview, and only then be determined inadmissible and possibly be found eligible to submit a waiver.  As one may imagine, if the applicant knew in advance that he or she would be determined inadmissible, the only way in which to become legal would require the foreign national to be willing to leave the US for as many years as it would take to either receive a waiver of inadmissibility or to actually serve the required time outside the US, away from one’s family. 

One new option initiated by The Department of Homeland Security in 2013 is a way in which the foreign national may remain in the US while processing a waiver of inadmissibility request prior to leaving the US.  This process is limited in that it is only available to some foreign nationals who have an immigrant visa immediately available, but who are not eligible to adjust status due to unlawful presence or entering the US without inspection, typically called “EWI.”  If the applicant is unable to adjust status in the US, and must seek consular processing due solely to unlawful presence, then there is a new waiver possibility (Form I601A) available to some relatives of US citizens who can prove the requirements for the waiver. This process has a specific procedure to follow, first with the immigrant petition being filed with USCIS and then having the approval sent to the National Visa Center, the applicant then paying the immigrant visa fees, then the applicant notifies the NVC of the intent to file the Form I601A with USCIS, and then the applicant proceeds with filing the I601A in order to have the inadmissibility issue of unlawful presence waived prior to the applicant leaving the country to proceed to a consular interview for an immigrant visa.  NOTE that the I601A can only be used by an applicant who is in the US, is the spouse or son or daughter of  a US citizen, if that USC spouse or parent can show extreme hardship if the waiver were not granted, AND if the ONLY reason for inadmissibility is due to unlawful presence in the US that would create a 3 or 10 year bar upon departure.  If there are any other issues that would lead the USCIS to believe that a waiver could be necessary for other types of inadmissibility, then the option to even file an I601A may not be available to the foreign national seeking permanent residence.  This area of consular processing and waiver eligibility is complex and changes frequently with policy and practice, so that it would be best to seek the advice of a knowledgeable immigration attorney.  The Pinjuh Law Firm handles these issues regularly and has been successful in achieving approvals for waivers both in the US and outside the US, as necessary.

Waivers for T nonimmigrants are not available for inadmissibility based on security related grounds, international child abductions, or former citizens who renounced citizenship to avoid taxation.


 

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