Daniel Shaffer, Esq.
Marriage-Based Green Cards: Adjustment of Status vs. Consular Processing (2023)
Getting a green card is the ultimate goal of many immigrants to the US. It grants permanent residency and allows them to live and work in the country indefinitely, as long as they keep renewing the green card as needed. For married couples, there are two ways to obtain a green card: adjustment of status (AOS) and consular processing (CP). In this post, I will explore the differences between these two methods.
Adjustment of Status
Adjustment of status (AOS), in the context of marriage-based green cards, is the process of applying for a green card while remaining in the US. It is available to those who are already in the country on a valid visa, such as a K-1 fiancé visa or a student visa. It is important to remember that you cannot travel to the US with the intention of applying for a green card through adjustment of status unless you have a valid visa specifically designed for that intention. The AOS process requires filing Form I-485, which is an application to adjust status to permanent resident, along with several other forms and supporting documentation.
Married couples who choose to apply for a green card through AOS must meet certain requirements. The sponsoring spouse (or petitioner) must be a US citizen or legal permanent resident, and the non-US citizen spouse (the beneficiary) must ensure that they do not have any disqualifying immigration history, medical issues, or criminal history. The couple must have a valid marriage certificate, and the couple must be able to prove that the marriage is genuine and not solely for immigration purposes.
One advantage of the AOS process is that the couple can remain together in the US while the application is being processed. They can also apply for work authorization and travel documents while they wait for the green card to be approved. However, if the couple (or just the spouse beneficiary) is living abroad, they cannot apply for AOS.
The main disadvantages of the AOS process is that the beneficiary will be stuck in the US for sometimes more than a year, unable to legally work for much of that time and unable to travel outside of the US without abandoning their green card application. Depending on the specific situation, consular processing offers much more freedom for beneficiaries to travel and work while they are waiting for their green card application to be processed.
Consular processing (CP), in the context of marriage-based green cards, is the process of applying for a green card while outside of the US. It is available to those who are living abroad or those who are in the US but are not eligible for AOS. This process requires filing Form I-130, which is a petition for an alien relative, and Form DS-260, which is an application for an immigrant visa, along with several other forms and supporting documentation.
Married couples who choose to apply for a green card through CP must meet the same requirements as those who apply through AOS. However, the spouse beneficiary must attend an interview at a US embassy or consulate in their home country. This interview is conducted by a consular officer who will determine if the marriage is genuine and whether the applicant is eligible for a green card.
One advantage of the CP process is that the process can be faster than AOS, although this is not guaranteed, nor is it always the case. Another advantage of CP is that the beneficiary will retain their ability to travel and work outside of the US while the case is pending.
The main disadvantage to CP is that the couple may be separated during the process if the petitioning spouse is living in the US and the spouse beneficiary remains outside the US while waiting for approval.
Both adjustment of status and consular processing are valid ways for married couples to obtain a green card. The choice between the two methods depends on the couple's individual circumstances, such as whether they are living in the US or abroad, and whether they are willing to be separated during the application process. It is important to consult with an immigration attorney to determine which option is best for your situation. If you would like to learn more or start the process, contact us.
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