Adjustment of Status vs Consular Processing
Introduction
Obtaining lawful permanent resident (LPR) status in the United States is a crucial goal for many immigrants, and there are two primary pathways to achieve this: Adjustment of Status (AOS) and Consular Processing. These processes have distinct eligibility criteria, procedures, and implications, making it essential to understand their nuances to navigate the immigration system successfully.
Adjustment of Status (AOS)
Eligibility Criteria:
- The applicant must be physically present in the United States.
- They must have entered the U.S. legally, either through inspection and admission or parole.
- Generally, the applicant should not have violated their nonimmigrant status, such as through unauthorized employment, although there are exceptions for immediate relatives.
Process:
- After the I-130 petition is approved, eligible applicants can file Form I-485 (Application to Register Permanent Residence or Adjust Status).
- The application package includes various forms, such as I-864 (Affidavit of Support), I-693 (Medical Examination and Vaccination Record), and optional forms like I-765 (Employment Authorization) and I-131 (Travel Document/Advance Parole).
- The applicant must undergo a medical examination by a USCIS-approved doctor and attend a biometrics appointment.
- If required, the applicant will be scheduled for an interview at a USCIS Field Office.
Policy Implications:
- AOS allows individuals already in the U.S. to transition to LPR status without leaving the country, which can be particularly beneficial for those with strong ties to the U.S. or who face risks if they return to their home country.
- Recent policy changes, such as the waiver of COVID-19 vaccination proof for green card applications, simplify the process for some applicants.
Legal Precedents:
- The Supreme Court's decision in cases like Loper Bright highlights the importance of judicial review in immigration cases, emphasizing that BIA decisions are not entitled to deference or special respect on judicial review.
Consular Processing
Eligibility Criteria:
- This process is applicable for applicants who are outside the United States or those in the U.S. who are not eligible for AOS.
- The applicant's priority date must be current according to the Visa Bulletin, unless they are immediate relatives of a U.S. citizen.
Process:
- After the I-130 petition is approved, the case is sent to the National Visa Center (NVC) for processing if the applicant is abroad.
- The NVC collects fees, supporting documents, and visa application forms. The applicant then applies for an immigrant visa at a U.S. embassy or consulate.
- The applicant must also undergo a medical examination and may be required to attend an interview at the consulate.
Policy Implications:
- Consular Processing involves coordination between USCIS, the NVC, and U.S. embassies or consulates, which can be more complex and time-consuming compared to AOS.
- Policy changes, such as the recent directives from DHS regarding enforcement discretion and the resumption of the Migrant Protection Protocols (MPP), can impact the processing times and eligibility criteria for consular processing.
Practical Impact:
Comparison of Processes:
- Location: AOS is for applicants in the U.S., while Consular Processing is for those outside the U.S.
- Speed: AOS can be faster for those already in the U.S. with immediate relative status or a current priority date, as it avoids the need to travel abroad and wait for consular processing.
- Documentation: Both processes require extensive documentation, but AOS involves more forms and steps within the U.S., such as biometrics and potential interviews.
Challenges and Considerations:
- Applicants must avoid violations of their immigration status