Getting a Green Card: Consular Processing vs. Adjustment of Status

If you're one of those who can choose between the two procedures for getting a green card, adjustment of status or consular processing, this article will help you weigh the pros and cons and decide which to use.

By , J.D. · University of Washington School of Law

There are two main procedural routes used by foreign nationals who are applying for a U.S. green card (lawful permanent residence), known as:

  • "consular processing," and
  • "adjustment of status."

The main difference between them is location and which U.S. government agency you will be dealing with. Some applicants (but not all) are allowed to make a choice between the two procedures. If you're one of those who is allowed to choose, this article will help you weigh the pros and cons and decide which to use.

What Are Consular Processing and Adjustment of Status?

Consular processing is considered the "normal" procedure. It means that, after the intending immigrant has had an immigrant petition (USCIS Form I-130 or I-140) filed by a U.S. family or employer sponsor and approved on their behalf, and (if are in a preference category) found that their priority date is "current" and a visa number has become available, the immigrant submits the subsequent green card application to, and attends an interview at, a U.S. consulate or embassy in the home country.

Adjustment of status is a procedure developed for applicants already living in the United States, for the most part in lawful immigration status. It means that the application is handled entirely within the United States, through an office of U.S. Citizenship and Immigration Services (USCIS). In cases of immediate relatives (spouse, parents, and minor children of a U.S. citizen), the I-130 petition and adjustment of status application can be submitted concurrently (at the same time).

Which Applicants Have No Choice But to Consular Process

Intending immigrants who are already overseas are expected to consular process. This understandably makes some applicants impatient, as the process can take several months, and they'll be apart from their family member all that time. However, looking for a way around the process is likely to get you nowhere, or worse.

For example, some applicants have attempted to enter the U.S. on the Visa Waiver Program, or using a B-2 tourist visa, thinking that they will then be able to adjust status. However, VWP entrants are (with only a few exceptions) prohibited from applying to adjust status. And using a tourist visa with the idea of entering the U.S. in order to apply for a green card (for example based on marriage to a U.S. citizen) is considered visa fraud, and can make you forever ineligible for the green card or for any other visa or U.S. entry.

In short, if you are an immigrant living overseas and in the process of applying for a green card, you should plan to go through consular processing.

Which Applicants Can Choose Between Consular Processing and Adjustment of Status

Intending immigrants who are in the United States now in legal status, or who entered the U.S. legally and are the immediate relatives of U.S. citizens, can either submit an application for adjustment of status or choose to go the consular processing route. So can the few immigrants who happen to fall under an old section of the immigration laws called Section 245(i).

See the "Who Is Eligible to Adjust Status?" question under Frequently Asked Questions About Adjustment of Status for details on these eligibility rules.

If you have the choice of adjusting status, you should ask your U.S. petitioner (family member or employer) to note your choice on your Form I-130 or I-140, if you are submitting these as separate documents. If you are submitting them concurrently with your green card application, however, you don't need to give USCIS any advance notice. You just mail in your application and await follow-up action.

A final note: Some applicants, while they technically have a choice, should really choose adjustment of status rather than consular processing if at all possible, because of their past unlawful stay in the United States. See "Advantages and Disadvantages to Adjustment of Status," below, for further explanation.

Advantages and Disadvantages to Consular Processing

Depending on which country you are from and which part of the United States you live in, your local U.S. consulate might be handling visa applications at a faster rate than your local USCIS office. You can check the processing times for Form I-485 on the USCIS website, then make inquiries of the U.S. consulate serving your country to compare.

If speed in entering the United States is particularly important to you, then a faster consular processing time might be a reason to choose this option.

When comparing processing times, don't forget that if you choose consular processing, you will have to add in the time it will take USCIS to process the initial petition before turning the case over to the State Department and overseas consulate for further processing. Concurrent filing of all your immigration paperwork is not an option when dealing with the consulate.

The disadvantages to consular processing are many. You won't be able to have an attorney present to help you present the case and advocate on your behalf. If the interview goes badly and you are asked to submit follow-up documentation, it can be hard, even if you have hired an attorney, for the attorney to figure out exactly what the consulate is asking for, and why.

Any delays in the process can mean an even longer time during which you are apart from your family in the United States, or have to tell your new U.S. employer to keep the job open for you a little longer.

Also, there is no right of appeal from a consular denial (though you can reapply, if no permanent ground of ineligibility was turned up during the application process).

Advantages and Disadvantages to Adjustment of Status

As soon as you apply for adjustment of status, your stay in the United States is lawful until your application has been decided upon (even if your underlying visa expires). You can get a work permit (EAD) while your application is pending. You can also leave the United States while your application is pending if you have applied for and obtained what's called "advance parole."

You will able to have an attorney present at your adjustment interview. The attorney can help make sure you have all your required paperwork in order for the interview. Although the attorney cannot answer questions for you, they can help argue why the law is on your side if need be, and help clear up any confusion that the interviewing officer might have about your case.

If your case is denied after adjustment of status interview, you will (unless you are still in valid visa status) be placed into removal proceedings. This sounds bad, until you realize that it offers you an opportunity to present your application for a green card all over again, to an immigration judge.

But by far the most important reason to choose adjustment of status, if you have this option, is that it allows you to avoid the impact of the three- and ten-year time bars for your past unlawful presence (if any) in the United States. These time-bar penalties are in most cases handed out only after an applicant leaves the U.S., including for an interview at a U.S. consulate. If you have spent any time in the U.S. without permission, read Consequences of Overstaying on a Temporary U.S. Visa to further understand how this might affect you.

A waiver of these time bars is available based on extreme hardship to U.S. citizen or permanent resident spouses or parents; and some applicants who are immediate relatives of U.S. citizens can event apply for this waiver before leaving the U.S., on a provisional basis (Form I-601A), but approval of the waivers is far from automatic. If you've got the choice of adjusting status, it's far easier to just go that route.

Do You Need a Lawyer's Help?

You don't necessarily need to hire a lawyer to apply for a U.S. green card, unless you have some troublesome items in your background or feel uncomfortable handling the paperwork. But many immigrants find it's easier to have someone else make sure the process is done smoothly and correctly.