Consular Processing Vs. Adjustment of Status
Immigration to the United States can be a lengthy process, and many would love to expedite it. The adjustment of status process of immigration can, under the right circumstances, allow someone to begin living and working in the United States before their immigration process is complete. Basically, it's a fantastic shortcut.
However, shortcuts may not be the best way to achieve a successful immigration. In some cases, the consular immigration process through a U.S. embassy or consulate is the better choice. Because each person's situation is different, it's wise to consult a qualified, experienced immigration attorney before making the final decision.
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Consular Processing
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All legal immigration types are available through consular processing. The immigration applicant has a case filed with the U.S. Citizenship and Immigration Services. The agency reviews applications, occasionally requests information and clarifications, and then makes a decision. Approved applications then go to the National Visa Center where the visas are created and then on to the appropriate U.S. embassy or consulate.
Embassies and consulates arrange consular interviews during which immigrants' identities and stated intentions for immigration are verified by consular officers. If all goes well, immigrants receive their visas at that point.
Length of Time
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Consular processing can be very lengthy. Because of the high volume of applicants, compared with the annual allotment of immigrant visas, the wait time for a consular-processed visa can take anywhere between four months and 10 years. The time line an individual can expect depends on several factors.
Each year the USCIS issues 226,000 family-based visas and 140,000 employment-based visas per year. Each country has a maximum number of visas allotted to its nationals. Chinese, Indian and Philippine nationals may face longer wait times for employment-based visas than people from other countries. The same three nations face extended waits for family-based petitions, along with Mexican and Dominican nationals.
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Adjustment of Status Immigration
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For immigrations applicants who qualify for a currently available visa, an adjustment of status process is possible. Immigrants can check the Department of State's visa bulletin to see if their visa class is currently available at travel.state.gov/visa/bulletin/bulletin_1360.html.
Adjustment of status can occur when someone legitimately enters the United States on a non-immigrant visa such as a visitation or education visa. At that point, he may file a permanent residency application such as an I-130 family-based petition or I-140 for employment-based petition. Simultaneously the applicant can file an I-485 application to adjust to immigrant status.
The I-485 asks the government to allow the potential immigrant to remain in the country legally and for employment privileges while his immigration petition is being reviewed. USCIS will typically review and answer an I-485 within 60 days. However, this may vary by case.
Risks and Intentions
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Intention is the key to I-485 immigration. To be eligible for an adjustment of status, the applicant entering the country on a non-immigration visa should have intentions matching the visa. I-485s are for those who find new opportunity or change their minds due to the course of events once inside the United States. Thus, USCIS may examine whether or not a person entered with the intention to immigrate. Such an intention could cause denial of a petition.
Marriage
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Although the I-485 process can technically be used for spouses of U.S. citizens, USCIS frowns on this immigration path. Instead, spouses intending to immigrate should enter on K-3 or K-4 visas intended for the purposes of marriage. A K-3 visa obviates the need for an adjustment of status as it allows the spouse to remain in the United States for up to two years, which is longer than the time required for an I-130 family-based petition to process for a citizen's spouse.
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References
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