Consular Processing vs. Adjustment of Status – How to Immigrate

In family-based immigration cases, if the immigrant is the spouse, child or parent of a citizen of the United States, and is present in the United States after being admitted or “paroled ” into the country , such person can ask the United States Citizenship and Immigration Service (USCIS) to adjust his or her status to Lawful Permanent Resident of the United States and receive a “Green Card”. The main benefit of this process is that it allows the immigrant to receive a permanent residence without leaving the United States. To qualify for this benefit, it is very important that the person was legally admitted to the United States, and in the case some cases, is still is in lawful immigration status.

One of the few exceptions to the requirement of lawful admission to the country for adjustment of status is if the immigrant entered the United States unlawfully, or overstayed after lawful admission, all this before December 21, 2000, and had a pending immigrant petition for an employment-based or family visa submitted before April 30, 2001. If that is the case, the immigrant could qualify  for adjustment of status under section 245(i ) of the Immigration and Nationality Act. In order to apply, the immigrant needs to file a complete application for adjustment of status, along with a fine of one thousand dollars ($ 1,000.00 ).

If the immigrant is a Cuban national, and was admitted , inspected or  “paroled” ( was granted permission to enter ) to the United States, he or she may apply for adjustment of status after waiting for a year and a day from the day of lawful admission or parole into the country.

If the immigrant is not eligible for adjustment of status, it is very likely that the person has to undergo “Consular Processing” to receive a visa to emigrate to the United States.

The procedure for applying for immigrant visas for relatives described above consists of three stages. The first stage is executed by a U.S. Citizen or permanent resident who qualifies to petition the immigrant. It consists on submitting certain applications on behalf of such immigrant. Second, the USCIS receives and evaluates the applications filed by the petitioning relative to examine and determine whether the application is approved. If approved, it moves to the third stage:  consular processing.

Consular Processing begins when the USCIS notifies the National Visa Center (NVC) that an immigrant visa petition was approved. Once a visa  is available for such immigrant (which depends on whether this is an immediate relative of a citizen of the United States or permanent resident), the NVC will notify the immigrant and/or the applicant and will request payment of the immigrant visa and affidavit of support fees in the amount of $445.00.

The NVC will then send a package with instructions detailing the forms must be completed, plus the documents that must be filed prior to consular appointment. These documents include:

1. “Affidavit of Support” , or declaration of economic capacity of the applicant to keep the immigrant visa.
2. Application for Immigrant Visa and foreign civil documents.

Once processing payments are made, and the applications   and civil documents are filed with the NVC, such office will schedule the immigrant visa interview. At the interview, a consular officer will speak with the potential immigrant, and at the end of it, if there are no reasons to refuse the issuance of a visa, or to exclude the immigrant from entering the United States, the same may be issued by the consulate.