Adjustment of Status vs. Consular Processing: A Legal Guide

When you or your spouse wants to apply for a marriage-based green card, how you do it depends on where the spouse who needs the green card is living.
 

If You're Already in the U.S.

If the spouse looking to get a green card is already in the U.S., you'll go through what's called "adjustment of status." 

Sometimes, you'll hear people say "concurrent filing," which just means you submit two forms at the same time – one to prove the family relationship (I-130) and the other to change the spouse's status to permanent resident (I-485). 

The U.S. Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security, handles these applications.

Check Out: Bringing Family Members to the U.S.: Family-Based Immigration Legal Guidelines
 

If You're Outside the U.S.

But if the spouse is outside the U.S., then "consular processing" is the way to go. This process involves working with U.S. consulates and embassies and the National Visa Center, which the U.S. Department of State manages.

Both paths will get you to the same destination – a green card – but they have different forms, requirements, timelines, and costs. 

However, who can pick which path is not always up to the couple. It usually depends on where the spouse seeking the green card lives and their specific situation.
 

When You Don't Have a Choice

Most of the time, where you live and your current visa status decide for you. Here are some examples:

1. Adjustment of Status: If you're in the U.S. and have a valid visa (like work or student visas), and your spouse is a green card holder, you can adjust your status. But, you must keep your visa up-to-date until your green card is processed, which could take up to 2.5 years.

Important: As of March 24, 2023, the wait times for green card processing for spouses of green card holders have increased due to a growing backlog.

2. Consular Processing: If you're in the U.S. but can't keep your visa valid, you need to apply from outside the U.S. through consular processing. If you've overstayed your visa by six months or more, expect a ban of three or ten years from re-entering the U.S. 

Getting a "waiver of inadmissibility" (essentially, a pardon) before leaving the U.S. may help avoid this ban.

If you're outside the U.S. and don’t have a visa to enter, consular processing is your only option. This might mean living apart from your spouse during the application process.
 

When You Have a Choice

In some situations, you might get to choose:
 

• Living in the U.S. with a Valid Visa: If your spouse is a U.S. citizen, and you're in the U.S. with a current visa, you can pick between adjustment of status and consular processing. Adjustment of Status is likely better if you want to stay in the U.S. during the application process. Consular Processing might be a good choice if you wish to spend some time in your home country before moving to the U.S.
• Living Abroad Together: If both you and your spouse live outside the U.S., you might apply as if the sponsoring spouse lived in the U.S., or you might apply based on "exceptional circumstances" through Direct Consular Filing, which is quicker but available only under specific conditions (like military deployment or urgent medical treatment needed in the U.S.).

Regardless of where you're starting, if both spouses live abroad, the U.S. citizen spouse needs to show they’re still connected to the U.S. by, for example, keeping a home or job there.

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