When applying for a spousal visa, the process depends on where the spouse seeking a green card is currently living. If they are in the United States, they’ll follow the “adjustment of status” procedure. If they’re living abroad, the process is known as “consular processing.” While both options aim for the same goal—a marriage-based green card—there are key differences in how they work, the forms involved, and the costs. Let’s dive into each process to help you decide the best route for your situation.
What is Adjustment of Status?
Adjustment of Status (AOS) is a process for individuals who are already in the United States and wish to apply for a green card without leaving the country. For couples in this situation, the sponsoring spouse (the U.S. citizen or green card holder) can file both the family sponsorship form (I-130) and the adjustment of status application (I-485) simultaneously. This is often called concurrent filing.
USCIS (U.S. Citizenship and Immigration Services) handles the adjustment of status process, which typically allows the spouse to stay in the U.S. while their green card application is pending.
What is Consular Processing?
Consular Processing is for individuals applying from abroad. If the spouse seeking a green card is living outside the U.S., they will go through this process, which involves submitting their paperwork to the National Visa Center (NVC) and attending an interview at the nearest U.S. embassy or consulate. Consular processing is handled by the U.S. Department of State.
While the forms and supporting documents are similar, consular processing involves a visa interview abroad, whereas adjustment of status is managed by USCIS inside the U.S.
When You Don’t Have a Choice: Forced to Use One Process
In some cases, you won’t have a choice between adjustment of status and consular processing. Here’s when you must follow one route:
Adjustment of Status (AOS)
If the sponsoring spouse is a green card holder and the spouse seeking the green card is already in the U.S. and plans to stay there while their application is pending, they must apply for adjustment of status.
- The applicant must maintain a valid immigration status (like an H-1B work visa or an F-1 student visa) until they file for adjustment.
- Visa numbers are available immediately for spouses of U.S. citizens, but there may be a waiting period for spouses of green card holders.
Consular Processing
If the sponsoring spouse is a green card holder but the spouse seeking the green card cannot maintain a valid immigration status in the U.S. (for example, their visa expired or they are unable to extend it), they must go through consular processing.
Additionally, if the spouse is living abroad without a valid visa to enter the U.S., they’ll apply from their home country using consular processing.
If the spouse overstays their temporary visa in the U.S., they could face bars to re-entry (3 or 10 years), which could delay or complicate their green card application process. A waiver might be needed for re-entry.
When You Have a Choice: Deciding Between the Two
Some couples have the option to choose between adjustment of status and consular processing. Here’s how to decide:
Living in the U.S. with a Valid Visa
If the sponsoring spouse is a U.S. citizen, and the spouse seeking a green card is living in the U.S. with a valid visa (like H-1B or F-1), they can choose either adjustment of status or consular processing.
- Option 1: Consular Processing
This option may be best if the spouse seeking a green card wants to spend time in their home country before settling in the U.S., such as finishing their education or taking care of personal matters. - Option 2: Adjustment of Status
This is usually the best option if the spouse wants to stay in the U.S. while their green card application is pending. This option also allows the applicant to stay even if their visa expires, though overstaying can have consequences.
Living Abroad Together
If both spouses live abroad, the process depends on whether the sponsoring spouse is a U.S. citizen or green card holder.
- Option 1: Apply as if the sponsor were in the U.S.
If the sponsoring spouse is a U.S. citizen or green card holder, they can apply through USCIS from abroad, with some exceptions, depending on where they live. - Option 2: Direct Consular Filing
In certain “exceptional circumstances” (like military deployments or urgent medical needs), some couples can apply directly through a U.S. embassy or consulate visa Direct Consular Filing. This is the fastest option, typically taking just 3 months.
Important Considerations
Travel During the Process
- Consular Processing: It can be difficult for the spouse seeking a green card to travel to the U.S. while their application is pending, even if they have a valid tourist visa.
- Adjustment of Status: If the spouse is in the U.S., they can’t travel outside the country until they receive an Advance Parole (a travel permit). Additionally, they must attend any required interviews and appointments.
Risks with Consular Processing
Consular processing comes with a risk of administrative review, where the application may be flagged for additional scrutiny. This could extend the application time and complicate the process.
No such risk exists with adjustment of status applications filed within the U.S.
Quick Decision Guide
Choose Adjustment of Status if:
- You are in the U.S. and want to stay there.
- Your sponsoring spouse is a green card holder, and you can maintain valid immigration status for the next 2.5 years.
Choose Consular Processing if:
- You want to spend the next year living abroad, and your sponsoring spouse is a U.S. citizen.
- Your sponsoring spouse is a green card holder, and you can’t maintain valid immigration status in the U.S.
Choosing between adjustment of status and consular processing depends on your specific situation. Understanding the rules, risks, and timelines of each process can help you make an informed decision. For couples who need additional guidance, Law and Visas can assist you with the immigration process every step of the way, ensuring you stay on track and make the best decision for your circumstances.
