Daniel M.Pell: Immigration & State and Federal Trial Practice.

Consular Processing vs. Adjustment of Status

Adjustment of Status refers to the process before United States Citizenship and Immigration Services(USCIS) through which non-citizens obtain Lawful Permanent Residence(green cards).

Non citizens can seek to come to the United States either through applying abroad for an Immigrant Visa or if they are in the United States can apply for Adjustment of Status.

Consular Processing refers to the process through which a U.S. citizen or Lawful Permanent Resident relative of a non-citizen of the United States, is able to bring that relative to the United States by applying within the United States to the United States Citizenship and Immigration Service(USCIS) of the Department of Homeland Security(DHS) for a visa number and classification that allows the non-citizenrelative to appear in the U.S. Embassy or Consulate abroad, and following a personal interview, receive a visa which allows the non-citizen relative to come to the United States, and apply for admission at a port of entry such as New York, Houston, Dallas, Philadelphia, San Francisco, Miami, or other international entry point.

The non-citizens can usually bring their minor(under 21) unmarried children with them. Typically, the way such non-citizens come to the U.S. is that their spouse or parent files a Petition with USCIS for an immediate relative classification and visa number. Once USCIS approves the Petition, the visa approval is sent to the National Visa Center in New Hampshire which sends the visa approval to the US Embassy or Consulate abroad.

The U.S. Embassy or Consulate abroad then notifies the foreign national/beneficiary that a visa number and visa classification has been approved and that the person must fill out many forms and obtain a medical exam and vaccination and come to the U.S. Embassy or Consulate for a personal interview. If the U.S. Consul approves, the foreign national/beneficiary is issued a visa which is placed into the person’s passport along with a sealed packet of materials that must be presented to U.S. Immigration Officials when the person lands at an airport in the United States(port of entry).

If the U.S. Consul denies the application after interview, there may be a re-interview, but generally speaking there is no right to appeal the denial.(The US Visa Office does have jurisdiction to review purely legal issues raised before the US Consul, factual determinations cannot be appealed).

Adjustment of status, on the other hand, is done in the U.S. after a foreign national is physically present in the United States. All of the forms for adjustment of status are filled out and filed in the U.S. and the interview is conducted in the U.S. If denied, the foreign national can file a motion to reconsider or reopen the denial. In some cases the foreign national can proceed into federal court for review of the denial decision. In others no federal court review is permitted, but if and when the government places the foreign national into removal proceedings, the Immigration Judge can review the adjustment of status denial, and grant it if he or she deems it proper under law. An appeal of a denial by the Immigration Judge can be pursued to the Board of Immigration Appeals and in some cases to the US Court of Appeals if denied by the Board of Immigration Appeals.

Consular processing also can be used to obtain an Immigrant Visa for a foreign national who has been given approval by USCIS for a work-based application.

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