Adjustment of Status vs. Consular Processing: Which Path Is Safer for Your Family?

In most family immigration cases, there are two possible paths.

One is Adjustment of Status, where the green card process happens inside the United States. The other is Consular Processing, where the immigrant attends an interview at a U.S. embassy or consulate abroad.

Both paths should lead to lawful permanent residence, but each process is different and one may be more well suited for your scenario. Family based immigration does not have a one-size-fits-all solution. In some situations, choosing the wrong path and filing before a thorough legal analysis of the situation can lead to years of delay, major complications, or a lengthy separation from your family.

When I speak with clients, one of the first things I usually want to understand is how the person originally entered the United States. The circumstances of your initial entrance into the United States will play a large part in determining the best course of action to receive your Green Card

When is Adjustment of Status the Best Option?

If a person entered the United States with a visa and is otherwise eligible, Adjustment of Status is often the safer and cleaner option because the applicant can remain in the United States throughout the process. However, it is important to be aware of the recent USCIS policy memo that reframes adjustment of status as “extraordinary relief.”

If you can adjust status as an immediate relative of a U.S. citizens, this means you will be able to stay together with your family, avoid the risk of international travel, attend your USCIS interview at your local office, and receive your green card while staying in the United States. For obvious reasons, most families strongly prefer this route whenever it is legally available.

When is Consular Processing the Best Option?

Not every applicant is eligible to adjust status inside the United States. Most commonly, those who originally entered into the U.S. without inspection (without legal permission or a Visa).

In those situations, unless there is some separate legal basis allowing adjustment, such as protection under INA §245(i),consular processing may be the only available path.

Being unable to adjust status does not mean that you will never be able to acquire lawful permanent residence, It simply requires additional analysis to determine the best path through consular processing. Once consular processing enters the equation, I generally begin analyzing additional issues such as:

• unlawful presence bars;
• prior immigration history;
• removal orders;
• prior entries or departures;
• fraud or misrepresentation concerns; and
• whether any waivers may be required.

At that point, the case becomes much more than simply proving the marriage is legitimate.

What Happens if You Leave the Unites States?

For most people departing the United States can be completely fine, but for those who have accrued unlawful presence it can create major consequences for those hoping to gain lawful permanent residence. This is where immigration law becomes far more technical than most people expect.

The accrual of unlawful presence begins as soon as your status expires for any reason. Once you have more than 180 days (about 6 months) of unlawful presence, you are subject to a three-year bar on entering the United States, and after over one year of unlawful presence you are subject to a ten-year bar. In more serious situations, there can even be permanent inadmissibility issues.

This is why I am often cautious when someone casually tells me, “We’ll just go to the interview abroad and come back.” Unfortunately, immigration law does not always work that way. Sometimes the act of leaving the country is exactly what creates the problem.

The Waiver Issue

Many families first learn about waivers only after they discover that departure from the United States may trigger inadmissibility. A waiver can save you from the hardship of long term separation from your family due to a bar on entry as discussed above.

However, waivers are not automatic and are not as simple as they may seem from a preliminary Google search. You must demonstrate extreme hardship to a qualifying U.S. citizen or lawful permanent resident relative. This requires some fact specific analysis, extensive documentation, and a strong understanding of the legal process. This is where a knowledgeable attorney can help your case.

Two Similar Cases — Completely Different Outcomes

I have seen situations where two families appear almost identical on the surface.

Both involve valid marriages.
Both involve U.S. citizen spouses.
Both involve individuals trying to legalize status.

Yet the legal outcome can be dramatically different.

For example:

One person entered the United States lawfully with a visa and may be eligible to complete the entire process through Adjustment of Status inside the country.

Another person entered without inspection and may be required to depart for consular processing, potentially triggering a ten-year bar and the need for a waiver.

Same marriage.
Same family goal.
Very different legal exposure.

The Real Question Families Should Be Asking

A lot of people initially focus only on whether they qualify for a green card. But strategically, that is often only the beginning of the analysis. It is essential to consider exactly what might happen if you leave the United States? That is where many of the major immigration risks are found.

Final Thoughts

In many family immigration cases, Adjustment of Status is the safer path because it allows the applicant to remain in the United States and avoids triggering certain inadmissibility issues tied to departure.

But not every person qualifies for Adjustment of Status.

And when consular processing becomes necessary, the case should be carefully analyzed before anything is filed.

A proper legal analysis should usually include:

• manner of entry;
• unlawful presence issues;
• prior immigration history;
• possible inadmissibility grounds;
• waiver eligibility; and
• the practical risks associated with departure from the United States.

These are the issues that often determine whether a family immigration case proceeds smoothly, or turns into a far more complicated legal situation than the family expected.

Schedule a Consultation

If you have questions about your marriage-based green card interview, call The Law Offices of Sean D. Hummel at (954) 385-3111 or email sean@hummelaw.com. We will review your case, prepare you for what to expect, and walk through the interview with you.

Disclaimer

This blog post is for general informational purposes only and is not legal advice. Immigration law changes frequently and every case is unique. Contact our office to discuss your specific situation.

About the AuthorSean D. Hummel is a Florida U.S. Immigration Lawyer based in Deerfield Beach. His law practice focuses on family-based immigration, adjustment of status, naturalization, waivers, and humanitarian relief. He represents clients throughout South Florida and across the United States