What is the Difference Between Adjustment of Status and Consular Processing to Get a Green Card?


[The following is the full transcript of the blog video: What is the Difference Between Adjustment of Status and Consular Processing to Get a Green Card?]

Hello, this is Erick Widman, I’m an immigration lawyer. In this video, we’re going to be talking about the two main ways to get a green card. There’s two main pathways, and one of them is called Adjustment of Status. The other is consular processing. So what’s the difference? It’s surprisingly easy and surprisingly complex. At the same time, a little counterintuitive, a lot of the same concepts apply. But there are different pathways. So the first option is called Adjustment of Status. And that happens in the US when you already have status of some kind, and a petition is approved for you, and you’re able to move forward with a green card application, you also have to have what’s called an immigrant visa available for you. In the US, if you’re an immediate relative. If you are the spouse, the parent or the child of the petitioner, that means a visa number. And a petition is immediately available. You don’t have to wait till your petition becomes current. But if you’re the spouse, for example of a green card holder, or if you’re the sibling of a US citizen, and you’re probably waiting a long time to get that petition approved, you have to wait for the petition to become current before you can adjust status. Those are the preference categories. So you also have to be admissible. For either approach, that is a term of art, you can’t be inadmissible, you’ve got to be admissible to adjust status, or do consular processing. So issues like health, criminal security, public charge, prior removals, big issue. So you have to be admissible. In addition, if you haven’t maintained your status, you might not be able to adjust status. So if you were a US student, and you didn’t properly maintain your status, in many cases, you cannot adjust your status. There’s a another key requirement, or you have to be admitted properly, and you cannot enter without inspection. So you got to provide proof that you entered with inspection into the US in order to adjust status, to be eligible to process overseas and do consular processing. You have to be in the right jurisdiction. So you can’t just fly into another country where you’re not a resident of that country without special permission, and immediately get jurisdiction in in that country at the US Embassy there. Also in 2020, got to watch out for various visa bans visa suspension under President Trump. Now, what you have to watch out for there are some key pitfalls with the adjustment of status process. mentioned before entry that inspection is a big problem. Non immigrant intent, another key issue, unauthorized employment, unlawful status, and you got to prove that your marriage is genuine. So I’m just hitting these issues from a high level. Issue spotting is what they teach us in law school and I want you to spot these issues to consular processing pitfalls. Got to watch out if you’re from a travel ban country or a three or 10 year bar might apply to you. That can be difficult to confirm. And that’s why we recommend doing Freedom of Information requests, if you’re ever in doubt was a deportation are an expedited removal order issued. Another key issue to watch out for is police reports which you have to have for consular processing. And that can be difficult to gather those in many countries, sometimes the force our clients to get help from a local lawyer because they’re demanding bribes, things like that. It’s never a dull moment in the world of immigration. If you’re deciding well I could adjust status or proceed with consoles. consular processing, which one should I choose? Here’s some pros and cons. With adjustment status, you have the ability to appeal, a negative ruling, a denial, you don’t have that option with consular processing. The Supreme Court has said that the US embassy and the consular officers have almost unfettered discretion to decide and to determine if that person qualifies for a visa or not. You cannot appeal those cases all that easily those negative decisions Also, there are some benefits with Adjustment of Status such as interim work authorization, there’s the ability to travel internationally while you’re still waiting for your green card to come through. Those are key perks that you don’t have with consular processing. You also have the ability to have a lawyer with you at the adjustment of status interview, that’s not allowed with consular processing hasn’t been for a while. But consular processing, especially for employment cases can take a shorter amount of time. So one of the final key concepts I want to share with you is that at the adjustment of status interview, when they’re determining if you qualify, or not, especially based upon your marriage to a US citizen, there’s a totality of the circumstances test. And so they’re looking to determine that it’s more likely than not that you qualify for the benefit more than 50% and you should get approved. So they’re going to look at issues like your age relative to that of your spouse, your education skills, they’re going to be looking at issues like this to confirm that you do qualify.

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