Filing for a Fiance Visa (K-1) and Spouse Visa (K-3) requires consular processing; that is, the immigration case is processed at the U.S. Embassy located in the country where the fiance or spouse lives.
Adjustment of Status (AOS) is a procedure that allows an eligible applicant to become a lawful permanent resident (green card holder) of the United States without having to go abroad and apply for an immigrant visa. This process is done within the United States and cannot be done abroad, just like consular process must be done abroad and not within the United States.
There are many additional protections and advantages in filing for adjustment of status (AOS) versus consular processing. If adjustment of status is available to you, it is often going to be your best option.
Adjustment of Status has many more benefits than consular processing because it offers: 1) faster processing times; 2) streamlined processing and less delays; 3) it provides you with the right to an attorney, which does not exist at most consular posts; 4) it offers better communication with officers who will be adjudicating your case; 5) if adjustment is denied, you have the right to review the application before an immigration Judge. In contrast, there is no real appeal from consulate adjudications; 6) you can get work authorization while the adjustment is pending; 7) There is no need for police clearances (this is required for consular processing); and, among other benefits 8) with adjustment of status, a green card is stamped on the applicant’s passport on the day of approval (green card arrives in the mail within two to three weeks.
In order to take advantage of the adjustment of status option, you must obviously first be in the United States and you must have entered the United States lawfully. Also, if you enter the United States as a nonimmigrant, you can be denied adjustment of status as a matter of discretion under the notion of what is called “Preconceived Intent” to immigrate. Preconceived intent means that the U.S. Citizenship and Immigration Services makes a determination that when you entered as a nonimmigrant, your intent was not to stay in the U.S. temporarily (the way you claimed you would when you applied for your visa), but rather, you entered with the intent to become an immigrant.
If you come to the United States using a nonimmigrant visa knowing you want to marry a U.S. Citizen and adjust, USCIS may find that you are guilty of visa fraud.
The Department of State has several rules to determine if an applicant has committed visa fraud. Although preconceived intent alone is not enough to deny adjustment of status in an immediate relative petition, it could still be used negatively against your case. When applicants fill out the immigration petitions, there are no questions asked about preconceived intent. That is one of the reasons why it is important to talk to an immigration lawyer before filing anything with USCIS.
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