Adjustment of Status vs. Consular Processing
ADJUSTMENT OF STATUS
If the foreign national’s priority date is current and the individual is within the U.S., he or she may apply for adjustment of status by filing an application with U.S. Citizenship and Immigration Services. The application may remain pending for several months before USCIS issues lawful permanent residence to the foreign national. If the foreign national needs to travel abroad during this time, he or she must seek special travel permission known as “advance parole.” The foreign national may also receive employment authorization while the adjustment application is pending.
In general, adjustment of status is only available to individuals who have always maintained lawful status in the U.S. There is, however, an exception for petitions for the spouse, parent, or child under 21 of a US citizen, where the foreign national legally entered the United States and has stayed longer than permitted. So, persons who marry US citizens, among others, come under this exception. Previously certain programs allowed people who had violated their status to adjust status if they had filed labor certifications or immigrant petitions prior to April 30, 2000 and paid a penalty of $1,000. There are no such programs now, but persons who have violated their status and wish to apply for residence should contact an immigration attorney.
Foreign nationals based overseas can process their immigrant visas at consular posts in their home countries. Individuals who violated their immigration status and are not eligible for adjustment of status under any of the enumerated exemptions must return to their home country for consular processing. Under the 1996 Immigration Act, individuals who have been unlawfully present for 180-365 days, then voluntarily left the U.S. are barred from reentering the U.S. for three years. Individuals who have been unlawfully present for more than one year, then voluntarily left, would be barred from reentering the U.S. for 10 years. There are very limited exceptions for overcoming these bars.