Consular Processing Vs. Adjustment of Status
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About Adjustment of Status
In all cases in which an individual is eligible to obtain a green card, one must decide whether to request adjustment of status (AOS) or consular processing. The choice involves a careful review of the individual’s immigration history, as not everyone is eligible for AOS or CP.
Adjustment of Status (AOS) is a process of obtaining permanent resident status in the U.S. without having to leave the U.S. This is different from changing status from one nonimmigrant status to another. AOS is generally unavailable to many (but not all) who entered the U.S. without inspection by an immigration officer, or those who violated status by overstaying a visa or for those on whose behalf an application for Labor Certification or Family Preference petition was not filed before April 30, 2001.
Consular Processing (CP) is a process of applying for an immigrant visa at a U.S. Consular post outside the U.S. for intended immigrants who are not in the U.S. or who are otherwise ineligible for AOS.
AOS may be preferred over CP because:
- It avoids the expense and inconvenience of travel to the home country
- AOS applicants, including dependent family members, are entitled to employment authorization and permission to travel while the AOS application is pending
- Employment-based AOS applicants receive job mobility (i.e., “portability”) benefits
- There are more options for reconsideration of an unfavorable decision by USCIS than by a consulate abroad whose denials are unreviewable
Can I Adjust my Status from Within the U.S.?
As noted above, not everyone is eligible for AOS—even if there is an immediate family member (United States citizen spouse or child over 21) who wants to petition for them due to an issue with the individual's entry or immigration status in the U.S. Some individuals have no choice but to CP. An individual living abroad cannot enter the U.S. prior to the completion of her/his green card case and must use CP to obtain the immigrant visa from the U.S. consulate abroad. Some individuals who have not maintained status or entered without inspection may only be eligible for CP.
What Is an Unlawful Presence Waiver & Am I Eligible?
Some who are eligible for CP may face the three (3) and ten (10) year bars to re-entry if they leave the U.S. and attempt to reenter the U.S., as they would be deemed inadmissible. However, certain immediate relatives of U.S. citizens may apply for a provisional unlawful presence waiver, also known as a stateside waiver, before they leave the U.S. It is also known as an I-601A waiver. If approved these individuals may return to their home county to CP with the assurance that they will not be subject to the bar. Others who have left the US and are attempting to reenter may be deemed inadmissible and may also apply for an unlawful presence waiver.
Get Assistance from New Jersey Immigration Attorneys on Your Case
Only a an experienced immigration lawyer can offer you legal advice regarding your green card application. If you have questions regarding what you need to do, what you're eligible for, and the most likely path to success for your green card, speak with the Law Offices of Lloyd E. Bennett, Esq., P.C. today. We provide initial consultations that answer all your questions regarding the green card application process. We review your personal records, immigration history, and family history to determine all your options for permanent residency—and we put your green card application on the fastest and most effective path to success.
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