Adjusting Status on U.S. soil means getting the green card by filing for it while on U.S. soil.  Typically, an Adjustment of Status is filed on Form I-485 and we typically co-file an interim work permit called an EAD and interim travel permit called Advance Parole.  This depends on the travel and work needs of the Beneficiary. 

Meanwhile, Consular Processing for a green card means filing the I-130 Family Based Petition or I-140 Employment Based Petition with a request for overseas processing of the green card.  This means the green card (immigrant visa status) will be adjudicated at a U.S. consulate, normally in one’s home country.  You can also file an I-824 to change to this consular processing option after having first selected Adjustment of Status as your preferred method of processing. The wait on an I-824 before it activates the U.S. State Department to open a consular case for you at the National Visa Center is about 5-8 months.

How Do You Know Which Option Is Better For You?

In every immigration consultation, the procedure to obtain the immigrant visa (green card status) of an individual involves carefully analyzing a person’s current situation, where they are located, and when they wish to obtain the benefit. 

The decision depends on a number of factors, one of which is the conflict between immigrant intent and nonimmigrant intent. When using a visa with strict nonimmigrant intent, there is an inability to travel while an Adjustment of Status case is pending which can lead to abandonment of the pending green card application, unless a travel permit is concurrently obtained.   

When we see a conflict with nonimmigrant intent, we strongly advise clients to consider filing for overseas consular processing so that every U.S. entry as a nonimmigrant can be viewed as a legitimate short-term entry.  To clarify, nonimmigrant intent is a term of art which requires most temporary visa holders to NOT intend to become permanent residents of the United States, at the very least, not during the visit while they are using their temporary visa.

However, on many occasions, a person will file for a green card from A or G, or O or E visa status where nonimmigrant intent is required but impossible to maintain.  [H-1B and L-1 visa holders are permitted dual intent, the intent to be a nonimmigrant while also intending to become an immigrant.] In these cases, our advice is three-fold. First, above all, do not file the Adjustment of Status case if your intent to remain permanently was questioned at the border. Second, wait 90 days from the time of last entry before filing the Adjustment of Status. And third, consider whether filing 90-days after US entry will be a hinderance to international travel and know that you must further await a travel permit called Advance Parole. Advance Parole is allowed on pending green card cases, but the pendency time is very lengthy (about 7 months at the time of writing this) and all the while, international travel is hindered.

In the family-based realm, there is also the mistake of knowing that one intends to get married on U.S. soil and then applying for a Tourist Entry, but then entering, marrying and then asking to adjust status on U.S. soil, too soon. This may result in a disastrous consequence where the married person is not allowed to adjust status on U.S. soil and is then sent back to the home country to slowly complete green card processing overseas.

Also be careful of your application for a J visa if you have a two-year home country requirement at the end of their U.S. J Visa stay.  These people cannot adjust status on U.S. soil and must fulfill their time overseas in accordance with the J Visa regulations. Granted, in such a situation, a person may apply for a “No Objection Waiver” but the U.S. Department of State has experienced a changing of the guard under the Trump Administration, resulting in refusals to grant the discretionary recommendation for a Waiver.

One last scenario affects some of the most privileged visa holders which are A Diplomats and G Visa workers for Nongovernmental Organizations like the World Bank. A G Visa Employee may want to file for U.S. lawful permanent residence, but given the strict rules about not intending to become an immigrant, their travel into the United States with a forthcoming green card can be hindered unless they have carefully planned their case to indicate consular processing from the outset on the Form I-140. 

Decisions should be made carefully from the outset of an immigration case in order to avoid major periods of separation from loved ones or from the jobs that are expecting you to “seamlessly” keep working in the United States.

Not all outcomes are negative, though. In a consultation with our law firm, you might find that you are eligible to file for an Adjustment of Status to green card after having changed your intent since the time you entered the United States. Or you might find that filing a simple extension of temporary stay buys enough time to make a decision about whether to file an Adjustment of Status.

Feel free to contact our law offices for a consultation about the best way to handle your decision to adjust status or consular process by calling 1-703-531-0790 or writing to us at info@langwallace.com.

ADJUSTING STATUS versus CONSULAR PROCESSING – for Green Cards

Adjusting Status on U.S. soil means getting the green card by filing for it while on U.S. soil.  Typically, an Adjustment of Status is filed on Form I-485 and we typically co-file an interim work permit called an EAD and interim travel permit called Advance Parole.  This depends on the travel and work needs of the Beneficiary. 

Meanwhile, Consular Processing for a green card means filing the I-130 Family Based Petition or I-140 Employment Based Petition with a request for overseas processing of the green card.  This means the green card (immigrant visa status) will be adjudicated at a U.S. consulate, normally in one’s home country.  You can also file an I-824 to change to this consular processing option after having first selected Adjustment of Status as your preferred method of processing. The wait on an I-824 before it activates the U.S. State Department to open a consular case for you at the National Visa Center is about 5-8 months.

How Do You Know Which Option Is Better For You?

In every immigration consultation, the procedure to obtain the immigrant visa (green card status) of an individual involves carefully analyzing a person’s current situation, where they are located, and when they wish to obtain the benefit. 

The decision depends on a number of factors, one of which is the conflict between immigrant intent and nonimmigrant intent. When using a visa with strict nonimmigrant intent, there is an inability to travel while an Adjustment of Status case is pending which can lead to abandonment of the pending green card application, unless a travel permit is concurrently obtained.   

When we see a conflict with nonimmigrant intent, we strongly advise clients to consider filing for overseas consular processing so that every U.S. entry as a nonimmigrant can be viewed as a legitimate short-term entry.  To clarify, nonimmigrant intent is a term of art which requires most temporary visa holders to NOT intend to become permanent residents of the United States, at the very least, not during the visit while they are using their temporary visa.

However, on many occasions, a person will file for a green card from A or G, or O or E visa status where nonimmigrant intent is required but impossible to maintain.  [H-1B and L-1 visa holders are permitted dual intent, the intent to be a nonimmigrant while also intending to become an immigrant.] In these cases, our advice is three-fold. First, above all, do not file the Adjustment of Status case if your intent to remain permanently was questioned at the border. Second, wait 90 days from the time of last entry before filing the Adjustment of Status. And third, consider whether filing 90-days after US entry will be a hinderance to international travel and know that you must further await a travel permit called Advance Parole. Advance Parole is allowed on pending green card cases, but the pendency time is very lengthy (about 7 months at the time of writing this) and all the while, international travel is hindered.

In the family-based realm, there is also the mistake of knowing that one intends to get married on U.S. soil and then applying for a Tourist Entry, but then entering, marrying and then asking to adjust status on U.S. soil, too soon. This may result in a disastrous consequence where the married person is not allowed to adjust status on U.S. soil and is then sent back to the home country to slowly complete green card processing overseas.

Also be careful of your application for a J visa if you have a two-year home country requirement at the end of their U.S. J Visa stay.  These people cannot adjust status on U.S. soil and must fulfill their time overseas in accordance with the J Visa regulations. Granted, in such a situation, a person may apply for a “No Objection Waiver” but the U.S. Department of State has experienced a changing of the guard under the Trump Administration, resulting in refusals to grant the discretionary recommendation for a Waiver.

One last scenario affects some of the most privileged visa holders which are A Diplomats and G Visa workers for Nongovernmental Organizations like the World Bank. A G Visa Employee may want to file for U.S. lawful permanent residence, but given the strict rules about not intending to become an immigrant, their travel into the United States with a forthcoming green card can be hindered unless they have carefully planned their case to indicate consular processing from the outset on the Form I-140. 

Decisions should be made carefully from the outset of an immigration case in order to avoid major periods of separation from loved ones or from the jobs that are expecting you to “seamlessly” keep working in the United States.

Not all outcomes are negative, though. In a consultation with our law firm, you might find that you are eligible to file for an Adjustment of Status to green card after having changed your intent since the time you entered the United States. Or you might find that filing a simple extension of temporary stay buys enough time to make a decision about whether to file an Adjustment of Status.

Feel free to contact our law offices for a consultation about the best way to handle your decision to adjust status or consular process by calling 1-703-531-0790 or writing to us at info@langwallace.com.

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