What is the difference between consular processing and adjustment of status for the EB-3 visa

What is Consular Processing? What is Adjustment of Status?

When pursuing a green card through the EB-3 Unskilled visa program, there are two main pathways: Adjustment of Status and Consular Processing.

Adjustment of status is available to individuals who are already present in the United States under a nonimmigrant visa status or other qualifying circumstances. To apply for adjustment of status, applicants file various forms, including the I-485 (Application to Register Permanent Residence or Adjust Status), I-765 (Application for Employment Authorization), and I-131 (Application for Travel Document). These forms are filed with the United States Citizenship and Immigration Services (USCIS). Adjustment of status allows applicants to remain in the US while their green card application is being processed.

Consular processing is applicable to individuals who are outside the United States or are ineligible for adjustment of status. With consular processing, applicants file the DS-260 (Online Immigrant Visa Application) through the Department of State's Consular Electronic Application Center (CEAC). This process involves attending an interview at a US embassy or consulate in their home country or country of residence.

What is the difference between Consular Processing and Adjustment of Status?

Both Adjustment of Status and Consular Processing are methods to obtain a green card, but they differ in terms of location and filing procedures. Adjustment of status is for individuals already present in the U.S., while Consular Processing is for those outside the country. Understanding the specific requirements and procedures associated with each process is crucial to determine the most appropriate approach for an individual's circumstances.

Practically speaking, there are some notable differences in what these processes look like.

Under adjustment of status, a person is legally able to remain in the United States once their green card application (I-485) has been filed. Along with the green card application, the application for work authorization is filed. Once the application for work authorization is approved, an Employment Authorization Document (EAD) is issued and the applicant can begin working for their employer while waiting for their green card.  

Under Consular Processing, the applicant remains in their home country and awaits their interview at their local consulate. Once the interview has taken place, the consulate issues an Immigrant Visa (IV) to the applicant. The Immigrant Visa gives the applicant 6 months to travel to the United States to collect their green card. Once the applicant has obtained their green card, they may live and work in the United States.

What visa types can you adjust your status from?

Certain nonimmigrant visa statuses in the United States may be eligible to adjust their status to a green card (permanent resident status) through the filing of Form I-485. The eligibility for adjustment of status depends on various factors, including the specific visa category and individual circumstances. Here are some common nonimmigrant visa statuses that may be eligible for adjustment of status:

  1. Employment-Based Visas: Nonimmigrant visa holders in employment-based categories such as H-1B (specialty occupation workers), L-1 (intracompany transferees), O-1 (individuals with extraordinary ability), and E-1/E-2 (treaty traders/investors) may be eligible to adjust their status through the EB-3 Unskilled visa program.
  1. Student Visas: F-1 (academic students) and J-1 (exchange visitors) visa holders who meet certain criteria, such as having a job offer from a sponsoring employer and fulfilling the requirements of the EB-3 Unskilled visa program, may be able to adjust their status.
  1. Treaty Trader/Investor Visas: E-1 (treaty traders) and E-2 (treaty investors) visa holders who meet the eligibility requirements of the EB-3 Unskilled visa program and have a qualifying job offer may be eligible to adjust their status.
  1. Other Nonimmigrant Visa Categories: In certain circumstances, individuals holding other nonimmigrant visa statuses, such as TN (NAFTA professionals), O-2 (support personnel for individuals with extraordinary ability), or P (athletes, artists, entertainers) visas, may be eligible for adjustment of status if they meet the requirements of the EB-3 Unskilled visa program.
  1. Spouses of nonimmigrant visa holders, for example individuals with F2 (spouse of F1 visa holder) or H4 (spouse of H1B visa holder) visas, have the opportunity to apply as the principal applicants for adjustment of status, enabling them to pursue a green card and transition from their dependent visa status to permanent residency in the United States.

It's important to note that eligibility for adjustment of status depends on various factors, and each case is evaluated on an individual basis. Consulting with a reputable company like BDV Solutions can provide personalized guidance and help determine eligibility for adjustment of status based on the specific nonimmigrant visa status and circumstances.

What countries can you do Consular processing from?

Although a non-immigrant visa holder (F-1 for example) from any country can file an immigrant visa petition (EB3 for example), non-immigrant visa holders cannot file an I-485 change of status unless they reside from a country that has an available visa allocation at the time of the filing. Therefore, non-immigrant visa holders can apply for immigrant visas, but they must process their applications from their home countries through Consular Processing and will not be admitted to the US as an immigrant until a visa allocation for their country becomes available. This date is known as the “Priority Date.” Sometimes, this is referred to as a “backlog,” meaning more people are applying for immigrant visas than the US has offered quotas for visas from that country. In other words, if the non-immigrant visa holder is from a country that does not have a current “Priority Date," they cannot file an I-485 change of status application and therefore must process their immigrant visa application from their home country through Consular Processing.  

If a non-immigrant visa holder applies for an immigrant visa, they will be announcing their intent to immigrate to the United States. Once a non-immigrant visa holder announces their intent to immigrate, they will generally no longer qualify for any non-immigrant visa programs. For non-immigrant visa holders from a country that does not have a current priority date, this could force them to return home while they process their immigrant visa and remain at home until their priority date is current. In the case of India, China, and the Philippines this could be as long as a decade. Although BDV's Sponsors do not discriminate against anyone for any reason, BDV has elected not to provide its services to immigrant visa applicants from China or India because BDV's services would be unaffordable if BDV maintained the application for the long wait times from these countries. We apologize for the inconvenience but hopefully there will be resolution in the future for Chinese and Indian born nationals.

Can you do consular processing under a country of not of birth?

Maybe under the “cross-chargeability” exception.

“Cross-chargeability” is a useful exception. Under cross-chargeability, if you and your spouse were born in different countries and you both want to apply for green cards, you may elect to be “charged” to your spouse’s country if the green card line for your spouse’s country is faster. For example, if you were born in India but your spouse was born in France, cross-chargeability would allow you to use your spouse’s country of birth (France) to apply for the green cards for you and your spouse sooner

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