Golfer

I have a general interest question concerning the immigration of family members. It appears that some family members are required to apply at the consulate and some are allowed to apply with a local immigration office (adjustment of status in the United States). Why this distinction? If a person is denied the adjustment of status, can she apply for an immigrant visa at the consulate through a waiver?

Noorah101

It totally depends on each person's immigration scenario, whether they qualify for AOS or not, thus the distinction.

As for your second question, I don't know. I suppose it would depend on why the AOS was denied, how she entered the USA in the first place, and whether she qualifies for an immigrant visa.

Your question is pretty general, so you probably will get very general answers (like mine. lol)

Rene

fatbrit

Family adjustment of status in the US is available to the spouse and parents of a US citizen who were inspected at the port of entry and entered under certain visas (the "crewmen's" visa is an obvious exception).

A massive problem with those who arrived without greeting the drone at the border and subsequently married a USC is that they cannot adjust but must leave the US to apply. And as soon as they leave, the long overstay bans will most probably cut in. As you point out, there is a waiver available -- but this is no easy undertaking. In addition, there was a short period some years ago (LIFE Act) which got around this problem with the payment of a fine, but this has now finished.

Folinskyinla

Hi:

No one is "required" to file for adjustment status instead of consular processing [although there are people where AOS is highly preferable -- another story].

Under the Immigration & Nationality Act, the way to immigrate is via the Immigrant Visa via a US Consulate abroad.

Adjustment of Status is in the Act as an EXCEPTION to immigrating via the immigrant visa process -- and has more requirements to meet.

It should be noted that section 212 has grounds of inadmissiablity in it which apply whether you are applying via the immigrant visa process or adjustment. The basic statute was enacted in 1952 but has been heavily amended since then. In 1996, section 212 was amended to add provisions that don't kick in until a person LEAVES the United States -- this is what causes some people having the ability to adjust, but not obtain an immigrant visa.

On top of that, adjustment is "discretionary." Last Thursday, I had a decision on an adjustment from Immigration Judge D.D. Sitgraves in San Pedro, California. She conceded that "hardship" is a discretionary factor, but somehow ruled in the face of overwhelming evidence from the Government that being subjected to torture there is "no evidence" of hardship. She then recited all that evidence to deny the adjustment. I am outraged on that decision and I am seeking reconsideration.

Golfer

This is a marriage-based board so I'll restrict my question to that particular context. If a spouse is denied an adjustment the status based on a discretionary reason, is it possible for her to apply for an immigrant visa at the U.S. consulate along with any required waiver?

snowbunny

In any case, it's the USC who files for the visa, NOT the spouse.

What's the spouse's country of origin? Then we can be more specific.

Noorah101

Hi snowbunny,

I think you mean the USC files the petition....then the foreign spouse applies for the visa.

Rene

snowbunny

Yep. Thanks for clarifying that point.

My understanding is that if a USC files a petition for a spouse who is in the US on the VWP, and adjustment is denied, the spouse can/must leave the US. The I-485 asks something to the effect of "if adjustment is denied, which foreign consulate will be used instead."

However, as others have stated, if the spouse is out-of-status in the US (has overstayed the VWP, for example) and AOS is denied, leaving the US to apply at the spouse's home consulate can trigger an overstay ban which then must also be addressed.

Of course, knowing more specifics about the OP's scenario would help.

Golfer

So it would be possible, at least in theory, to file an application with the consulate for an immigrant visa if the adjustment of the status is denied? Would the citizen spouse have to file a new form 130 or the previous approved petition is considered still valid?

meauxna

Still not enough info.

The reason for the denied AOS would be one factor.

scrubbedexpat099

You might get a straight answer if you gave a straight description of the circumstances.

Folinskyinla

Hi:

Notionally, yes. But that may not be advisable in an INDIVIDUAL case.

Golfer

I'm referring to a discretionary decision where the spouse qualified under the laws to obtain the benefit but it's denied by the immigration official. For instance, a conviction for driving without a license and her taking of unauthorized employment shortly after entry, showing immigrant intentions.
Regardless, is it possible to apply at a consular level for an immigrant visa after a denial of the adjustment on discretionary grounds?

Noorah101

You can't really say "regardless" here, because as Mr. F pointed out, each individual circumstance might be handled differently.

And if you just want to know "in general", Mr. F answered that in his post.

Rene

Golfer

Thank you so very much for your answers, comments and contributions.