Consular Processing versus Adjustment of Status for Spouses

Posted on Jun 18, 2024 by Chris Prescott

Consular Processing versus Adjustment of Status for Spouses

For many foreign nationals married to U.S. citizens (USC) or lawful permanent residents (LPR), the ultimate goal is to obtain permanent residency in the United States. However, the process of achieving this status can vary significantly depending on whether the individual pursues Consular Processing or Adjustment of Status. This article will delve into the key differences between these two options, highlighting the advantages and challenges associated with each approach.

**Consular Processing**

Consular Processing requires the foreign national spouse to undergo their immigration proceedings at a U.S. consulate or embassy in their home country. This option is typically chosen when the spouse is residing outside the United States or has difficulty maintaining lawful status within the country.

The primary steps in Consular Processing include:

  1. The U.S. citizen or lawful permanent resident spouse files an I-130 Petition for Alien Relative with U.S. Citizenship and Immigration Services (USCIS).
  2. Once the I-130 is approved, the case is forwarded to the National Visa Center (NVC), which then sends instructions and forms to the foreign national spouse.
  3. The foreign national spouse completes the required forms and submits supporting documentation.
  4. Upon receiving an appointment notice, the foreign national spouse attends an interview at the designated U.S. consulate or embassy.
  5. If the application is approved, the foreign national spouse receives an immigrant visa and can then travel to the United States to be admitted as a lawful permanent resident.

Consular Processing may be the only viable option for foreign nationals who have violated their immigration status or face grounds of inadmissibility in the United States. The process takes place entirely outside the country and depending on the violation may also require a waiver. 

However, Consular Processing also comes with its own set of challenges. The most significant of these is the potential separation of the couple during the immigration process. The foreign national spouse must remain in their home country until the immigrant visa is approved, which can take several months or even years, depending on various factors such as processing times and the availability of visa numbers.

**Adjustment of Status**

Adjustment of Status, on the other hand, allows the foreign national spouse to apply for permanent residency while already residing in the United States.

If the foreign national is marrying a USC and has a legal entry, then there is no need to demonstrate maintenance of lawful status and therefore someone that entered for example on a B-1/B-2 and overstayed is still able to adjust status.  However, marriage to an LPR requires the beneficiary to demonstrate maintenance of status and an overstay will require them to consular process.

The key steps in the Adjustment of Status process are:

  1. The U.S. citizen or lawful permanent resident spouse files an I-130 Petition for Alien Relative with USCIS.
  2. For immediate relative filings (Marriage to a USC) the foreign national can also concurrently file the I-485 Application to Register Permanent Residence or Adjust Status.  F2A filings (Marriage to an LPR) require the priority date to be current to file the I-485.  Given the current backlog (As of July 2024) concurrent I-485 filings are not possible.
  3. Once the I-485 has been filed the foreign national spouse attends a biometrics appointment to provide fingerprints and other biometric data.
  4. The foreign national spouse can apply for an Employment Authorization Document (EAD) and Advance Parole travel document (AP) while the adjustment application is pending.
  5. USCIS schedules an interview for foreign national spouses, where they must provide supporting documentation.
  6. If approved, the foreign national spouse is granted lawful permanent resident status without having to leave the United States.

One of the primary advantages of Adjustment of Status is that it allows the couple to remain together throughout the immigration process.  Additionally, while the adjustment application is pending, the foreign national spouse has the opportunity to work by applying for an EAD.

**Key Considerations**

When deciding between Consular Processing and Adjustment of Status, several factors should be carefully evaluated:

Lawful Status in the United States: Except for an Immediate relative filing, Adjustment of Status requires the foreign national spouse to maintain lawful status throughout the application process. If the spouse has violated their immigration status or faces grounds of inadmissibility, Consular Processing may be the only viable option.

Travel and Separation: Consular Processing necessitates travel to the home country for the immigrant visa interview, potentially separating the couple for an extended period. Adjustment of Status allows the spouse to remain in the United States during the entire process.

Employment and Travel Flexibility: While an Adjustment of Status application is pending, the foreign national spouse can apply for an EAD and AP, allowing them to work and travel outside the United States. Consular Processing applicants do not have these options.  

Processing Times: Processing times for Adjustment of Status and Consular Processing can vary significantly based on various factors, including the applicant’s country of origin and the processing location. It is essential to consider current processing times when deciding on the appropriate option.

Ultimately, the choice between Consular Processing and Adjustment of Status should be made in consultation with an experienced immigration attorney, considering the specific circumstances of the foreign national spouse and the couple’s goals and preferences.  Some foreign nationals choose to enter on a B-1/B-2 visa and then adjust status.  However, this is not without its challenges.  Entering on a B-1/B-2 with the intention of getting married and/or filing for Adjustment of Status can give rise to presumption of willful misrepresentation and additional steps are required.

**Recent Guidance from USCIS**

USCIS recently updated its policy manual which gives USCIS the discretion to determine whether to send the I-130 if the Petitioner does not indicate whether the Beneficiary intends to adjust status or Consular process.  It is therefore vital when filing the I-130 that the Petitioning spouse specifies whether the foreign spouses will adjust or consular process.  If the questions are left blank or both Adjustment and Consular processing are checked USCIS will determine whether USCIS will determine whether to keep the file for adjustment purposes or send to the NVC for Consular Processing.  This decision will largely be based on the beneficiary’s location as listed on the I-130 petition.

If a Petitioner accidentally states that the beneficiary will adjust status, despite residing outside of the US and USCIS approves the case, the Petitioner will need to file Form I-824 along with a fee of $590 to get the case transferred to the NVC for Consular Processing.  This will cause serious delays.  However, USCIS has stated that a Petitioner may contact them to provide a further update on whether the beneficiary will adjust/consular process prior to final adjudication of the petition.


For expert guidance and assistance in navigating the complex immigration process for spouses, consider seeking the services of Patel Law Group. Our dedicated team of attorneys specialize in family-based immigration and can provide tailored solutions to help you achieve your immigration objectives.

If you have questions regarding the above, please contact PLG Partner, Chris Prescott at