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Adjustment of Status vs. Consular Processing

What is Adjustment of Status?

For non-citizens who were admitted and inspected upon entry into the U.S., Adjustment of Status is the admission of status from temporary nonimmigrant to permanent resident from within the United States. Those who qualify for visas allowing an adjustment of status are often petitioned for by a spouse, other family member, or an employer. Non-citizens who have engaged in criminal activity, failed to appear for proceedings or failed to depart after a grant of voluntary departure, may be ineligible for adjustment of status. Understanding the process and eligibility requirements helps you determine if it’s the right option for your needs.

How do I Adjust Status?

Qualifying non-U.S. citizens who are physically present in the U.S. may submit a request for an Adjustment of Status (AOS). By filing a qualifying relative petition and an application with the U.S. Citizenship and Immigration Services (USCIS), immigrants facing removal may have their status changed to become legal residents before the Immigration Court.

One of the primary benefits of an AOS is the ability for someone to become a permanent resident without having to travel to their home country to obtain a visa.

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An adjustment of status results in the cancellation of any pending removal proceedings by the U.S. Attorney General. But this only occurs if the individual meets a number of criteria. These include a minimum 10-year period in which the person has lived continuously in the U.S. and a demonstration that he or she is a person of good moral character. If a removal would create some hardship for the individual or resident family member, he or she may obtain an AOS. Applicants must also not have any existing criminal convictions in order to achieve permanent resident status.

Eligibility Requirements for Adjustment of Status

Understanding the eligibility requirements for adjustment of status is the first step in avoiding removal and securing your status in the U.S. Individuals who want to be approved for an AOS must also meet the eligibility requirements for a green card. This can be accomplished through the existence of a U.S. employer or family member who is a permanent resident or U.S. citizen.

This also requires you to have a visa petition already approved on file as well as a current priority date. If you have obtained refugee status for a minimum of one year, you may be eligible to receive an adjustment of status. Also, anyone who has entered the country by using a K-1 fiancé visa will need to be married to their partner in order to obtain an AOS.

Refugees and immigrants who’ve received asylum must wait for a period of one year before qualifying for an adjustment of status.

Avoiding Common Issues Related to Adjustment of Status

An experienced immigration law attorney can help you obtain an adjustment of status and avoid removal proceedings. They can provide the resources you need to avoid common issues that can arise.

Unauthorized employment may also result in a person’s inability to obtain an AOS. Some exceptions apply when the Petitioner is an immediate relative (spouse or parent). Technical violations of status may allow an immigrant to be eligible for status adjustments if it’s been demonstrated that the violation did not occur through the fault of the individual.

The USCIS has the responsibility to respond to an adjustment of status application in a timely manner. Failure to do so may be considered when obtaining approval. There are many factors to consider when seeking an adjustment of status. Eligibility requirements can be complex, and having the right legal resources helps you obtain an AOS quickly and efficiently. An adjustment of status protects you from any removal proceedings and helps you establish a secure future for you and your family in the United States.

What is Consular Processing?

Immigrants who entered the United States illegally cannot obtain AOS (green card from within the U.S.) regardless of whether or not they have married a U.S. citizen. Consular processing is required if a person entered without inspection. This requires for the visa interview to take place outside of the U.S. at the consulate in the person’s home country. The qualifying relative petition (I-130) can be filed from within the U.S. but the green card itself will not be granted until after the consular visa interview, approval, and inspected admission upon entry into the United States.

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Pay careful attention to potential inadmissibility upon departure and the need for approved Inadmissibility Waiver prior to departing the United States. Experienced immigration counsel is critical.