Adjustment of Status vs Consular Filing

[yossarian33 0]

I am a US citizen living in Vienna, Austria. My wife is an Austrian--we got married just a few weeks ago---and we're expecting a baby in a few months. I currently work in Europe, but my job could conceivably move to the US at any moment and if that happens it's important that my family can remain together. It appears to me that there are two possible ways I can go about filing for a green card: (1) file an application for a consular processing now, or (2) wait until we actually move to the US, let my wife enter on a visa waiver, and then do a concurrent filing of the I-130 and I-485. I want to make sure I understand the advantages and disadvantages of each approach:

Possibility (1): Consular Processing

Advantages:

- The I-130 will be processed quickly, because Vienna has a USCIS field office that apparently processes the I-130 petitions in about a week (compared to the 8+ month wait that currently exists in much of the US).

- We can begin this process right now, so in the case where I don't have to move back to the USA anytime soon, we can pro-actively complete the entire green card application process before any urgent situation arises.

Disadvantages:

- It will still take at least several months, (probably more than 6 months, certainly more than 3?) for the I-485 to be processed. If I have to move to the US during this time, then my wife will be in an awkward position, because if she comes to the US with me, she will no longer be able to ask for an adjustment of status. That means that as long as her consular application is processing, she will only be able to stay in the US for 90 days (I'm not sure if this is true).

Possibility (2): Visa Waiver Program -> Adjustment of status via concurrent filing

Advantages:

- With this approach, we do not risk separation. We completely avoid the possibility where my wife has to wait in Austria while her consular application processes.

Disadvantages:

- My wife risks separation from her family in Austria. There will be a period of time just after the moment when we place the concurrent filing in which my wife needs to remain in the USA. She needs to remain while she waits for a re-entry visa (I believe you can get one of these if you file a I-131).

- We have to wait to begin the application process until we actually move the US. If that's not for another year or two, then we will have squandered this period of time in which we could have comfortably attained a green card.

Do I correctly understand the advantages and disadvantages of each approach? If so, it looks like possibility (2) is less risky: in this case, the main risk comes from the period where my wife is waiting for her re-entry visa (i.e., before the I-131 is approved). During this period, if she urgently needs to go back to Austria for some reason, the situation will become complicated because she won't have a re-entry visa. Does anyone know how long the I-131 takes to be approved when it's part of a concurrent, Adjustment of Status filing?

Edited February 4, 2014 by yossarian33

[Hypnos 6,579]

Entering the US on a nonimmigrant visa with the preconceived intent to remain and adjust status would constitute visa fraud.

Your first option is your only option.

[canadian_wife 1,831]

Option 2 is visa fraud

Your only option is option 1

good luck

[Harpa Timsah 13,261]

DCF in Austria is very fast (option 1), and it does not involve a I-485. Your sense of the process for that is not correct. It is a really good option, besides the fact it is the only legal option. Fast and no hassle, legal resident upon entry... far superior.

Edited February 4, 2014 by Harpa Timsah

[aussie_jason 195]

And if you are wondering what DCF is like I was - http://www.visajourney.com/content/dcf

[yossarian33 0]

Thanks for the replies!

@Harpa: You mentioned that my sense of the process is incorrect. I'd like to correct that. Let's say that the I-130 is approved quickly via a DCF in Vienna. To file for a spouse green card after that, what are the next steps, and how long do they usually take? During these subsequent steps (in the phase where the I-130 is accepted but my wife doesn't have a green card yet) is it easy to get something like a temporary immigration visa, so that she could join me in the US if I went over there to work?

[Harpa Timsah 13,261]

Thanks for the replies!

@Harpa: You mentioned that my sense of the process is incorrect. I'd like to correct that. Let's say that the I-130 is approved quickly via a DCF in Vienna. To file for a spouse green card after that, what are the next steps, and how long do they usually take? During these subsequent steps (in the phase where the I-130 is accepted but my wife doesn't have a green card yet) is it easy to get something like a temporary immigration visa, so that she could join me in the US if I went over there to work?

The DCF guide is linked in the previous post. I-130 is a petition that establishes a family relationship between two people. Once approved, that allows the foreign spouse to apply for an immigrant visa (CR/IR-1 in your case). Once the visa is obtained, the foreign spouse enters the US and doing so triggers their Permanent Resident status. The person becomes a permanent resident upon entry. Their Greencard, proof of their status, is mailed to the address in the US they gave.

In DCF, all the steps are fast. Once the I-130 is approved (which sometimes is approved in a day), then it is just a matter of the next available opening for an interview. Then, if approved, at interview, the visa is affixed to the passport and usually mailed to the person's home, but each embassy is different.

For this route, the I-485 never ever comes into play.

There are no temporary immigration visa. She could visit in the VWP (using her passport).

[yossarian33 0]

Thanks for setting me straight Harpa (and thanks aussie_jason for the link)! That answers my questions.

[Harpa Timsah 13,261]

Thanks for setting me straight Harpa (and thanks aussie_jason for the link)! That answers my questions.

Good luck and congrats on the wedding!