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 the U.S. Citizenship and Immigration Services. The application may remain pending for varying amounts of time from several months to a year or more 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 U.S. citizen, where the foreign national lawfully entered the United States and has stayed longer than permitted. So, persons who marry U.S. citizens, among others, come under this exception. 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 ineligible 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 narrow exceptions for overcoming these bars.