We frequently get the question whether someone should go for consular processing or adjustment of status. Often it is choice but sometimes there are no choices. This guide does not cover all the issues but quickly covers few of the situations when one is preferred onto the other
When Can I file adjustment of Status?
You can file adjustment of status when you are already present in the United States and you meet the requirements to file. For example for a marriage case, if you entered on a valid visa (limited in some visas), even you overstay you can file for adjustment of status through marriage. However, this is not true in employment based adjustment of status unless you can benefit from the provisions of INA 245(i)
When am supposed to file through consular processing?
Whenever you are outside the United States, and are not eligible for a dual intent visa such as H, L, etc visas, you should file for consular processing. There might be other reasons when you should go through consular processing.
Can I chose adjustment of status over consular processing or vice versa?
Yes, sometimes you can chose which one you want. However, in case you overstayed in the US, consular processing can be devastating. Talk to a good immigration lawyer before you leave. Other times, you just cannot adjust status in the United States.
Deciding whether you should opt for adjustment of status or consular processing can be decisive in any case. I will recommend that you talk to a good immigration lawyer before you make any decision on the matter. The above guide is very limited just to warn on the importance of deciding between the two options. Our law firm has handled many adjustment of status and consular processing cases successfully. We are located in the Bay Area California.
Disclaimer: One should not act or refrain to act based on the legal guide above. Each case is different, and you should contact a licensed attorney before you decide which option to take. No attorney-client relationship is created unless an agreement is signed by both parties.