As an attorney specializing in immigration law, I have consulted with numerous individuals in search of lawful permanent residency (“green cards”) in the United States. During these consultations, I am often required to share lengthy processing times and the potential for prolonged separation from loved ones during the consular process, if applicable. Although not much consolation, I remind people that the advantage of doing it the “right way” is that once the benefit is obtained, it can never be taken away from you. In response, I am told: “I know someone who entered the country illegally and got their green card almost immediately”. No, you don’t.
Understanding Adjustment of Status vs. Consular Processing
Adjustment of status refers to the process by which an individual already present in the United States can change their nonimmigrant status to that of a lawful permanent resident (LPR), commonly known as obtaining a “green card.” To qualify for adjustment of status, several criteria must be met. First and foremost, the applicant must be physically present in the United States. Additionally, they must have entered the country legally and be admissible under U.S. immigration law. If they entered the country illegally, they must demonstrate that they were the beneficiary of a petition that was filed on or before April 30, 2001 (known as “245i”). Other factors such as criminal history, immigration violations, or public charge issues may affect admissibility and should be carefully evaluated.
In certain cases, individuals may be required to pursue consular processing instead of adjustment of status. Consular processing involves applying for an immigrant visa through a U.S. embassy or consulate in the applicant’s home country. However, for those who have been in the United States and accrued unlawful presence, leaving the country to pursue consular processing triggers a bar from re-entry for a specified period of either three or ten years. If an unlawful presence bar is applicable, one must pursue a waiver (“601A”) of that bar prior to consular interview. For those that have never been in the United States and/or have no lawful way of entering, consular processing is the only option.
To be eligible for a 601A waiver, the applicant must demonstrate that their U.S. citizen spouse and/or parent would suffer extreme hardship if the applicant is not granted the waiver. Extreme hardship is a high standard to meet and requires careful documentation and persuasive evidence.
Applying for Adjustment of Status
The adjustment of status process begins with the filing of an application with the United States Citizenship and Immigration Services (USCIS). This application must be accompanied by an underlying family or employment-based petition. Among other things, it is also accompanied by applications for work and travel authorization. It is crucial to ensure that all required supporting documentation and fees are included to avoid delays or potential rejection and or worse yet, denial.
Processing and Interviews
Upon receipt of the adjustment of status application, USCIS will conduct a thorough review, including background checks and biometrics collection. If the application is deemed complete and meets the eligibility requirements, the applicant may be scheduled for an interview with an immigration officer. Provided that the application is well documented, USCIS may approve the application without interview.
Processing times vary based on geography. On average, it takes approximately eight months to receive work and travel authorization and approximately a year or more to obtain permanent residency. In the event consular processing is required, average processing times are about two years; if an unlawful presence waiver is required, this adds three to four years of additional processing time.
Factors Influencing Approval
Despite being statutorily eligible for the benefit sought, ultimate approval of the application is discretionary. While discretion has its limits, analysis and preparation are the keys to success. For example, during the interview, the officer will assess the applicant’s credibility, examine their supporting documents, and verify the information provided. Factors such as the bona fide nature of the underlying relationship (for family-based cases), the availability of qualifying job offers (for employment-based cases), and the applicant’s ability to demonstrate financial stability may significantly impact the outcome of the interview. Likewise, one’s prior immigration history in the United States, including but not limited to attempts to enter the United States is highly relevant. For example, information that one submitted in conjunction with an application for a visitor’s visa—even if that visitor’s visa application was granted and the person lawfully entered the United States—is relevant to the adjudication of the permanent residency application in the United States and failure to disclose material information at either stage may result in a determination of inadmissibility.
Adjustment of status and consular processing with a 601A waiver are two pathways that individuals may navigate to achieve lawful permanent residency in the United States. While adjustment of status is pursued within the country, consular processing with a 601A waiver involves leaving the United States temporarily. Understanding the eligibility requirements, preparing a strong waiver application, and seeking the guidance of an experienced immigration attorney are crucial for success. By navigating these processes effectively, individuals can increase their chances of obtaining a green card and moving closer to their goals of living and thriving in the United States. Processing times vary based upon geography and the nature of the underlying case. Regardless of where and how, two things are certain. First, if you do it right, it can never be taken away from you. And, second, your friend didn’t do it overnight.+
ABOUT THE AUTHOR
RICHARD M. WILNER – FOUNDING PARTNER
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court. Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality Law.
Committed to public service, Mr. Wilner served as a Commissioner on the State Bar of California’s Immigration and Nationality Law Advisory Commission. Mr. Wilner is the former co-chair of the Orange County Bar Association’s immigration law section and also serves on the board of the Orange County Jewish Bar Association. He provides pro bono representation to active-duty soldiers from the United States Armed forces in their immigration needs. He has served as the former Military Liaison for the Southern California Chapter of the American Immigration Lawyers Association.
A native of Los Angeles, California, Mr. Wilner received his law degree (Juris Doctor) as well as a Master of Laws (LL.M.) in Transnational Business Practice from McGeorge School of Law, University of the Pacific and the University of Salzburg, Austria. He also received a Certificate in International Law from the National University of Singapore and Bachelors of Arts degrees in Philosophy and Religious Studies from the University of California in 1992. He has worked in Thailand and Vietnam.