There are two ways to obtain a green card in the United States – adjustment of status and consular processing. Adjustment of status the process of obtaining permanent resident status from within the United States. Consular processing is the process of obtaining permanent resident status through an embassy abroad.
A couple is faced with the dilemma of choosing between one of the two processes when the foreign national spouse is regularly traveling in and out of the US on some type of nonimmigrant visa, such as a student or tourist visa. Adjustment of status is faster and easier. It allows the couple to remain together throughout the processing time. The foreign national spouse gets work authorization and permission to travel on advance parole while the petition is in process. Consular processing typically takes longer, is more complicated, and the couple must remain apart during the processing time. However, in some circumstances adjustment of status carries the risk that an immigration officer could determine that the beneficiary spouse has committed immigration fraud, making consular processing the safest option.
One of the main drawbacks of consular processing the length of time it takes to complete. When petitioning for a spouse, consular processing is initiated with an I-130 petition which is processed by USCIS. This stage alone can take anywhere from three to six months. The case is then forwarded to the National Visa Center, at which point the couple will complete more forms and submit supporting documents. The NVC stage also takes between three and six months to complete. Finally, the case is forwarded to the embassy abroad where the foreign national spouse has an interview with an immigration officer, which can take anywhere from two to four months. As you can see, the total processing time for consular processing varies greatly depending on how long each stage takes to complete. In total, it could be as short as seven months, or it could take longer than a year.
Adjustment of status is more predictable, and typically shorter, because the case is handled entirely by one agency – USCIS. The couple files the I-130 and I-485 forms concurrently, and after review the case is forwarded to the USCIS field office servicing the jurisdiction where the couple resides. The couple will appear for an interview with an immigration officer at that local USCIS field office, after which a decision is typically issued within a few weeks and the permanent resident card is sent to the couple by mail. While processing times have been increasing since the Trump administration took office, the whole adjustment of status process will typically take between seven to ten months.
Put this way, the obvious question is why not always use adjustment of status? In some situations, it is simply not possible. For example, if your spouse is residing in a foreign country and has no opportunity to travel to the United States on a non-immigrant visa. However, many couples find themselves in a position where the foreign national is traveling back and forth between the US and a foreign country and could try to process their case either with consular processing or through adjustment of status.
In this situation, it may be considered immigration fraud if the foreign national spouse obtained a non-immigrant visa or entered the US on a non-immigrant visa with the intent to apply for a green card. This is known as dual intent, and is prohibited under US immigration law. However, if the foreign national enters the US on a non-immigrant visa and then, after that entry and while in the US, forms the intent to apply for a green card, it is entirely appropriate to apply for adjustment of status.
I know this seems conflicting, as US immigration law allows you to adjust status from within the country when you came on a non-immigrant visa, but does not allow you to have that intent. The important point here is when you form the intent to adjust status. Here are two examples that will shed some light on what is allowed, and what is not.
If a foreign national spouse is abroad and the couple is making plans for the foreign national to travel to the US for the purpose of adjusting status, keep in mind that you are putting yourselves at risk. While many couples do not have any problem adjusting status, even a small risk is not worth it. If an immigration official decides that you have committed immigration fraud, it will cause much more serious problems than simply a denial of the adjustment. If you are in such a position, you should go through consular processing.
If the foreign national is already in the US and entered on a non-immigrant visa, you are free to marry and pursue adjustment of status so long as the foreign national entered with non-immigrant intent. To that end, you should be prepared to prove at your interview that the foreign national did not have dual intent through explanation and supporting documentation. You should make it as clear as possible to the immigration officer that there was not dual intent in your case to avoid any possibility that the officer erroneously determines that you have committed immigration fraud.