This article is the next in our series on permanent residence processing. In this article, I will discuss the differences between processing for permanent residence or the “green card” inside the US and outside the US at the US consulate.
Processing for permanent residence in the US is called “Adjustment of Status,” or “AOS” for short. To be eligible for AOS, the general rule is that the applicant must have entered the US through inspection and admission or by parole, some sort of legal process. Immediate relatives – spouses of US citizens, parents of US citizens at least 21 years old and unmarried children of citizens under 21 years old – only have to prove legal entry to file for AOS. In general, overstaying a period of admission or working without authorization does not prevent an immediate relative from filing for AOS.
That is not the case for those individuals who must take a quota from the available visas to become permanent residents. With limited exceptions, a person who requires a quota visa (all employment based categories and eligible family members not immediate relatives) must establish no or very limited (i.e. less than 180 days) amounts of time out of status or employed without authorization. Otherwise the person generally cannot obtain permanent residence inside the US.
The big exception to this is 245(i), which is a section of the law that creates an exception under very limited circumstances. Many people refer to this as Clinton’s Amnesty since it was passed during his second term as President. That law allows for AOS for someone who has a disqualifying amount of time out of status in the US or working without authorization, and for those who entered the US without inspection on payment of $1,000 fine. The law is expired, and therefore does not apply to cases started today. In fact, to qualify, the applicant must have had a petition or some other qualifying application that was approvable, filed on his or her behalf prior to April 30, 2001. Additionally, the applicant must show physical presence in the US prior to December 21, 2000 under some circumstances.
If AOS is not available to an applicant for green card, the person must process at the US consulate generally in his or her home country. This is called “Immigrant Visa” or “IV” processing. Some people call it “Consular Processing” or “AC Processing,” but since the consulates process green cards as well as temporary visas, I prefer “IV processing.” Those who have never been to the US always go through IV processing to obtain permanent residence in the US. If approved, the person receives an Immigrant Visa, which he or she must use to enter the US within 6 months generally. Once the person enters the US, the resident cards are processed and received generally in 2-4 weeks at the address provided in the IV application process.
There are pros and cons to both options. Sometimes it makes more sense for an applicant to seek AC processing even if AOS is arguably available. There have been many cases in which a client has told me other attorneys have said AOS is not available, and we have found a way to make it work. My strong advice is that before deciding which way to go, you must consult with an attorney to get the best advice about which option would be best for the situation.
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