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The ABCs of Immigration – Consular Processing Versus Adjustment of Status
by Greg Siskind and Amy Ballentine

There are two methods of securing permanent residence in the US once a person is approved for immigration. One is called consular processing; the other is adjustment of status. As the name implies, in consular processing the applicant applies for and processes an immigrant visa at a US consulate abroad, most often in their home country. Adjustment of status is the process by which a person already in the US has their immigration status adjusted to that of a permanent resident. The applicant determines the desired method of processing at the time the initial petition for classification as an immigrant is filed.

Consular Processing

In consular processing, the INS forwards the approved immigrant petition to the National Visa Center (NVC), which is part of the State Department. When an immigrant visa number becomes available, the NVC generates a collection of documents known as Packet 3. Packet 3 includes the State Department form for applying for an immigrant visa, an affidavit of support, which must be filed in all family cases and in some employment-based cases, and instructions on the process.

The applicant must complete the forms and return them to the appropriate consulate. The applicant must also gather documentation, including a passport, birth certificates, police certificates, court and prison records if relevant, military records if relevant, and marriage and divorce certificates for each person immigrating. Upon receipt of the forms and notification that the applicant has obtained all necessary documentation, the consulate will issue what is known as Packet 4. Packet 4 includes the time for the visa interview appointment, as well as information on obtaining the required medical examination.

If the application is approved, the person will be issued an immigrant visa, which is good for only six months. If the person does not enter the US within that period of time, the visa will expire and the opportunity to immigrate will be lost.

If the application is denied, the principle consular officer at the post reviews it. If the officer desires, he can get a second opinion from the State Department. However, if, after this point, the denial is upheld, there is no recourse for the applicant.

Consular processing was once the only way to obtain an immigrant visa, as there was no adjustment of status process. When adjustment of status was created, it became tremendously popular, due in large part to the reentry bars that were created in 1996. However, as INS backlogs have grown longer and longer, more and more people are looking at consular processing to speed the process.

Adjustment of Status

A person applies for adjustment of status with the INS from within the US. Along with the adjustment form, results of a medical examination, an affidavit of support, if required, evidence of the approval for immigration and a copy of the applicant’s passport must be submitted. Evidence of any familial relationships must also be submitted, if family members are seeking to adjust their status with the principle applicant.

If the applicant wishes to work or travel abroad while the adjustment of status application is pending, additional forms must be filed. A person is work and travel authorized for only one year at a time, so in many cases, because of INS processing delays, the applicant must renew these documents.

Not all adjustment of status applicants are interviewed, although the law provides that any adjustment applicant may be interviewed. Interviews are always conducted in marriage cases, but are less frequent in other family relationships. Interviews are quite rare in employment-based cases.

After approval for adjustment of status, it takes some months before the physical green card is obtained. If the approval follows an interview, the INS will stamp the applicant’s passport with an indication that they are a US permanent resident. If there is no interview, the applicant will receive a notice that the application has been approved, which they can take to a local INS office and obtain the stamp. A few months later, they will receive the green card.

Choosing Between Consular Processing and Adjusting Status

Deciding whether to pursue consular processing or adjusting status can be a difficult choice. The chief advantage of consular processing is speed. Consular processing is generally much faster than adjusting status. Six to eight months is not unusual compared to one to three years at various INS offices around the US.

Adjusting status has several advantages. First, processing can take place with no traveling abroad. Also, the applicant can work while waiting for processing to take place. Finally, processing in the US means that potential bars on reentry can be avoided that might prevent consular processing.

The question often arises over whether it is possible to pursue BOTH consular processing and adjustment of status simultaneously. The question is controversial. There is no statutory bar to processing both ways, but the INS takes the position that if it learns that one is pursuing both consular processing and adjustment of status at the same time, it will consider an adjustment application abandoned. This would typically arise when someone is in the process of adjusting status and files a request with the INS to cable an approval notice to a consulate to initiate consular processing. However, the issue will typically not arise in the reverse circumstances – when one begins with consular processing and then decides to pursue adjustment of status.


About The Author

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues. After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues. After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM Publishing Board as Marketing Vice Chairman and on the Council of the Law Practice Management Section. He is also a member of the Tennessee Bar Association, the Nashville Bar Association and the Memphis Bar Association. He serves on the board of the British American Business Association of Tennessee. And he serves on the Board of Directors of the Hebrew Immigrant Aid Society and on the executive boards of the Jewish Family Service agencies in Nashville and Memphis, Tennessee. He recently was named one of the Top 40 executives under age 40 in his hometown of Memphis, Tennessee.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.coming Board as Marketing Vice Chairman and on the Council of the Law Practice Management Section. He is also a member of the Tennessee Bar Association, the Nashville Bar Association and the Memphis Bar Association. He serves on the board of the British American Business Association of Tennessee. And he serves on the Board of Directors of the Hebrew Immigrant Aid Society and on the executive boards of the Jewish Family Service agencies in Nashville and Memphis, Tennessee. He recently was named one of the Top 40 executives under age 40 in his hometown of Memphis, Tennessee.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com



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