Consular Processing – Understanding the Process

Foreign nationals based overseas can process their immigrant visas at consular posts in their home countries. Individuals who violated their status in any way and are not eligible for adjustment of status under any of the enumerated exemptions must return to their home country for consular processing.

What are the Advantages to Consular Processing?

Unauthorized employment bars adjustment of status.  Section 245(c) of the Immigration and Nationality Act says that adjustment of status in the United States is not available to an alien who:

• accepts unauthorized employment prior to filing an application for adjustment of status
• has failed to maintain continuously a lawful status since entry into the United States

This makes you statutorily ineligible for the process of adjustment; it means that you are ineligible to obtain your green card in the United States.  USCIS  (U.S. Citizenship & Immigration Services) has the discretion whether or not to grant adjustment of status.  On the other hand, the American consul must issue the visa unless he or she finds that you are disqualified.  The consuls see their jobs as issuing visas.  CIS officers see their jobs as enforcing the immigration laws.  

The biggest advantage of consular processing is timing. Traditionally, immigrant visa processing at a U.S. consulate may save 3 to 18 months depending upon the U.S. consulate and the INS office that would have jurisdiction over the adjustment of status application.

What are the Disadvantages/potential problems to Consular Processing?

• No appeals process. One of the major differences between consular processing and adjustment of status is that there is no appeals process if your case is denied by a consular officer.  An appeals process and a process allowing for the reopening of denied and closed cases both exist in the adjustment of status process along with attorney representation in the appeal and in the initial green card interview at the local CIS office.
• Leaving the U.S. for consular processing could trigger the 3 and 10 Year Unlawful Presence Bars to re-entering the U.S. The 3 year bar is for overstaying or entering the US illegally and then staying in the US without authorization for 180-364 days, followed by a departure from the U.S. The 10 year bar is triggered when you stay in the U.S. without authorization  for 1 year or more and then depart the U.S. Notice that these bars don’t apply until you depart the U.S. so if the applicant can adjust status instead of consular processing, it may be the better route to avoid these bars. Read more here about the unlawful presence bars.
• Administrative Processing:  The Black Hole as it is not so affectionally referred to. This is what happens when after your interview, your case is not instantly approved and the consulate needs to hold your application until additional vetting, background checks, or “review” is conducted on your application.  There is no processing time on this.   Cases can remain on indefinite hold for months, sometimes longer and it is very difficult to sue the government to speed it up (although not impossible).

Consular Processing may be your only choice if you can’t prove heightened discretion is warranted for a grant of your adjustment case, based on the Trump 2.0 Policy.  Read more information here about Trump 2.0’s new heightened discretion rule treating adjustment of status as an “extraordinary” form of relief and what the government could weigh in deciding whether you should consular process instead. 

The above information is general in nature and is not intended to be considered or relied upon as legal advice.  To determine whether consular processing or adjustment of status is the best process for your case, consult an attorney.