Adjustment of Status and Consular Processing

The Immigration and Nationality Act (INA) of 1952 (codified as 8 USC §§1101 et seq.), is the governing law with regard to immigration in the USA and allows for two primary paths to permanent residency. First, when an immigrant is the beneficiary of an approved immigrant petition and there is an immigrant visa number immediately available, that immigrant may apply for and be granted permanent residency at a US Department of State Consulate on foreign soil. (INA §221) This process is known as consular processing. Second, an alien may apply for Adjustment of Status if they are in the USA already and have had a legal immigration status that they are seeking to change into residency. (INA §245(a)).

 

What is Consular Processing?

There are two main situations in which you normally use consular processing. First, if the immigrant is currently living in their home country and wishes to obtain permanent residency in the USA, they would use consular processing. Second, if the immigrant is currently in the USA but has some sort of bar to admissibility (such as illegal entry, criminal convictions or overstaying a visa), then they must return to their home country to attempt consular processing. Consular processing will always involve an interview at a US Consulate in the immigrant’s home country. Please keep in mind that if you have a bar to admissibility, additional steps will need to be taken in order to obtain residency, namely a Hardship Waiver will have to be filed. Additionally, there are certain bars to admissibility that result in a permanent immigration bar and make you ineligible for Waiver filings. Please speak to an experienced.

 

What is adjustment of Status?

 

If you came to the USA with documentation, are currently in the USA and have not since obtained a bar to admissibility (i.e. criminal conviction), it may be possible to adjust your status to that of a permanent resident. You first must have a visa available (this is possible if you marry a US Citizen or have an employer file paperwork for you, among other things). If all of these conditions are met, your paperwork may be filed in the USA and you will not have to return to your home country for an interview.