U.S. Marriage Immigration - Adjustment of Status vs. Consular Processing

As a cross-border immigration lawyer based in Windsor, Ontario, Christina Loebach helps couples who live on opposite sides of the Windsor-Detroit border reunite and live together. This blog post considers the two pathways that are available for U.S. citizens and permanent residents seeking to sponsor their spouse for a green card - Adjustment of Status and Consular Processing.

Adjustment of Status

Adjustment of status is the process available to applicants who are physically present in the United States and who have another valid immigration status. This means that the beneficiary can get a green card from inside of the United States, and do not have to return to their home country for visa processing. 

When applying for a green card via adjustment of status, all required forms and documents are submitted to USCIS at the same time. This includes forms I-130, I-130A, I-864, I-693, and I-485, as well applications for work authorization and/or advance parole (if applicable). Although these applications can be approved without an interview, it is common for couples to attend an interview at the USCIS field office closest to their U.S. address.

In practice, adjustment of status is a great option for individuals who have the ability or flexibility to stay in the United States throughout the entire processing period, which can often take 12 months or longer. Because adjustment of status requires physical presence in the U.S., the beneficiary cannot leave the United States during processing unless they first apply for and receive advance parole (travel authorization).

One of the main benefits of adjusting status is that the applicant can apply for an Employment Authorization Document (EAD) by filing the I-765, which allows them to legally work in the United States while their marriage-based visa is being processed. Applications for employment authorization typically take 3-6 months for processing. 

Adjustment of status is available for the spouses of U.S. citizens, but generally not for the spouses of lawful permanent residents. 

Consular Processing

Consular processing is the process available to applicants who apply from outside of the United States. This means that beneficiaries get approved for their green card from outside of the U.S. (typically in their home country), and don’t move to the U.S. until after they’ve been approved.

When applying for a green card via adjustment of status, the process is divided into two stages. The first stage is to submit the marriage petition application to USCIS. The marriage petition is effectively the means for a U.S. citizen or permanent resident to prove that they have a qualifying relationship with the person they are sponsoring. The government wants to see that it is a legally valid marriage, and that it is bona fide (i.e. not entered into for the purpose of obtaining a green card). 

The beneficiary can travel to the U.S. to visit their spouse while the marriage petition is being processed, but may need to bring documentation with them proving that their visit is temporary and that they have sufficient ties to their home country.

After the I-30 is approved, stage 2 begins. Stage 2 requires the petitioner to submit the I-864 and supporting documents to the National Visa Center, while the beneficiary must complete the form DS-260 and upload supporting documents. Once the National Visa Center receives the documents, they are forwarded to the appropriate consulate abroad and an interview is scheduled. For Canadians, the interview is held at the U.S. consulate in Montreal, Quebec.

Consular processing is available to spouses of U.S. citizens and U.S. lawful permanent residents.

Especially in the Windsor-Detroit area, it’s common for Canadians and Americans to fall in love and get married. Christina Loebach is licensed to practice law in both Canada and the United States, and loves working with clients who are considering sponsorship on both sides of the border. If you would like Christina to provide legal advice tailored to your situation, please schedule a consultation.