Green Card Seekers Should Consider Consular Processing

April 24, 2002

Applicants for an immigrant visa (also known as a "green card") have been subject to increasingly lengthy delays in the final step of the process, which is usually "adjustment of status." This is "adjusting" from a nonimmigrant (temporary) status to an immigrant (permanent) status while physically present in the U.S. The Immigration and Naturalization Service ("INS") recently announced that applications to adjust status at certain Service Centers may take as long as three years to be approved. For certain applicants, another option for this final step, known as consular processing, may be an attractive and more timely alternative.

Following the approval of a family-based or employment-based immigrant visa petition, an application for adjustment of status is usually submitted to the INS by foreign nationals who are physically present in the U.S. For various reasons, these applications have met with increasingly lengthy delays. For example, the INS has recently shifted resources to processing citizenship applications away from processing applications for adjustment of status. Additionally, because the "priority dates" for many people recently became current, the INS has had a tidal wave of adjustment applications. As a result, by some estimates, there are approximately one million adjustment applications pending with INS offices around the country.

For certain green card seekers, "consular processing" may be an attractive alternative to filing an adjustment of status petition. Instead of filing an adjustment of status application in the U.S., the holder of an approved immigrant visa petition may seek a green card by filing the required documentation directly with a consulate located in the applicant's home country. For many countries, the petitioner may be able to obtain a green card in less than a year—one-third the time that it may take in the U.S.

However, certain factors must be considered in determining whether a green card applicant is a good candidate for consular processing. First, an interview at the consulate in the applicant's home country is typically required, and applicants must be sure that they will be able to return to the U.S. following the interview. For example, individuals who have been unlawfully present in the U.S. for 180 days to one year are barred from returning to the U.S. for three years.

Additionally, applicants for adjustment of status must provide fingerprints to the INS to demonstrate they have no criminal records which would bar obtaining a green card. However, green card seekers who utilize consular processing must obtain a police clearance from every country in which he or she has lived for at least six months since the age of 16. This extra burden should be considered when weighing the option of consular processing.

Further, applicants for adjustment of status may obtain employment authorization for his or her spouse and children while the application is pending. For those pursuing a green card through consular processing, work authorization is not available.

Lastly, as would be expected, consulates vary in the length of time necessary for consular processing. For example, those that have historically experienced high rates of fraud may conduct extensive — and time-consuming — investigations into an applicant's background, further extending the time required.

When must you decide between consular processing and filing an adjustment of status petition? When the immigrant visa petition (Form I-140 or Form I-130) is filed, you must indicate which option you will pursue. For those who have already filed their immigrant visa petition indicating they will file an application for adjustment of status, a Form I-824 must be filed with the INS requesting that the State Department's National Visa Center and the appropriate consulate be notified that the beneficiary will be seeking a green card through consular processing instead. While Form I-824 processing can take up to several months as it is typically a low priority with the INS, some consulates are willing to work with green card seekers and their counsel before receiving the resultant INS notice.

If the immigrant visa petition has not already been filed, consider identifying the foreign consulate to be used for consular processing on the immigrant visa petition (Form I-140 or Form I-130). When it is approved, and in the event you choose to file an adjustment of status application instead, you can simply proceed. With filing the adjustment application, the Form I-824 need not be filed nor the resultant processing delay encountered.

In light of the above, those seeking green cards may want to consider whether consular processing is a useful alternative to adjustment of status. As with any other important legal decision, the choice should be based upon careful consideration of an individual applicant's background following a discussion with counsel.

For more information, please contact llebowitz@cohenlaw.com and mphillips@cohenlaw.com.