This blog will explain the differences between applying for a green card for a spouse living outside of the U.S. (i.e. consular processing) versus sponsoring a spouse who is already living in the U.S. (i.e. adjustment of status).
In case you missed it, Part 3 of this blog discussed translating documents required as part of the marriage petition application.
Two Pathways: Abroad vs. Living in the U.S.
There are two available processing pathways to petition a spouse through the marriage-based visa category in the United States. For most couples, only one pathway will be available depending on whether they are sponsoring a spouse that lives abroad (consular processing) or a spouse who currently lives in the United States (adjustment of status). However, some couples may be in a position to choose the pathway that is most advantageous to their personal situation.
Regardless of the pathway followed, the eligibility requirements remain the same. These eligibility requirements are discussed in detail in Part 1 of this series.
The consular processing and adjustment of status pathways follow different timelines and require different application forms, supporting documents, and fees. Below, we will discuss the key differences between these two different pathways for spousal sponsorship in the United States.
Consular processing is the pathway generally followed when the spouse being sponsored (the Applicant) lives outside of the United States and applies for their visa abroad. This is typically true when the Applicant does not have a valid visa to enter the United States. Consular processing is also the pathway followed when the Sponsor / Petitioner spouse holds a green card and the Applicant lives in the U.S. but cannot maintain valid immigration status throughout the entire length of the processing period.
Under the consular processing pathway, the Applicant will be required to submit police clearance certificates from every country where they have lived for more than one year. They must also submit to an interview with a consular officer and a medical exam. The consular processing pathway has the added risk of being flagged for “administrative review”, which means the application will undergo additional screening. This may delay the processing timeline considerably.
When couples have the choice between pathways, they may wish to consider consular processing if the Applicant does not wish to immediately move to the U.S. (for example, if they are finishing a degree or are completing a work contract in their home country). An additional benefit is that the consular processing pathway is often quicker than the adjustment of status pathway, although being flagged for an “administrative review” may effectively negate this benefit.
Couples must be mindful that under the consular processing pathway, they may be required to live apart while waiting for visa approval. This can be a frustrating reality for couples who are eager to begin or continue their married lives together. The Applicant is also not able to benefit from a work permit or travel authorization (advance parole) during the processing period. This means that it may also be more difficult for Applicant to visit the Sponsor / Petitioner spouse in the United States while the visa is being processed, although visits under the tourist visa category are technically allowed.
Adjustment of Status
Adjustment of status is the second processing method for spousal sponsorship in the United States. This process is available to foreign nationals who are physically present in the United States and who have another valid immigration visa (for example, an H1-B work permit). This means that the Applicant can get lawful permanent residence without having to return to their home country for visa processing. Adjustment of status will require a physical examination by a USCIS-authorized physician in the United States, in addition to fingerprinting.
If the Applicant wants to remain in the United States while their marriage-based visa is being processed, the adjustment of status process will be the most attractive option. The adjustment of status process also has the benefit of allowing the Applicant to apply for an Employment Authorization Document. This document allows the Applicant to legally work in the U.S. while their marriage-based visa is being processed.
Couples must be mindful that under the adjustment of status process, the Applicant will not be able to leave the United States until they receive travel authorization (advance parole). This can be challenging for the Applicant, particularly if they have loved ones to visit or special events to attend in their home country. In addition, the adjustment of status process tends to take longer than the consular processing pathway.
Check out Part 5: The Fiancé Visa (K Visa)