Adjustment of Status vs. Consular Processing
A person with an approved immigrant visa petition (I-140/I-130/I-360) may complete the immigration process (get a green card) through either adjustment of status (AOS) or through consular processing (CP). If the applicant is outside the US, the only way to immigrate to the US is to go through CP. A person already in the US, in many cases, has the option of choosing AOS or CP.
Due to the delays in processing the AOS application, many aliens are choosing CP, which often has shorter wait times depending on the consulate in question. Also, CP has a much lower risk of refusal as a consular officer may not deny immigrant visas based on discretion, which is the case with AOS.
Aliens who are qualifying for a green card pursuant to INA § 245(i) are not allowed to file for CP, as they are not allowed to leave the country in order to receive benefits under § 245(i). Section 245(i) allows an alien who was out of status to apply for AOS by paying a $1000 penalty. The alien must have had a labor certification or immigrant petition filed on their behalf prior to April 30, 2001 and must have been physically present in the US on December 21, 2000.
Section 245(c) of the Immigration and Nationality Act says that adjustment of status in the United States is not available to an alien who “accepts unauthorized employment prior to filing an application for adjustment of status… or who has failed… to maintain continuously a lawful status since entry into the United States.” If the alien falls into this category due to his/her past unauthorized employment, the person could be better off going for CP. Such unauthorized employment or failure to maintain legal status makes an alien statutorily ineligible for AOS, which means that the alien is ineligible to obtain a green card in the United States.
But this is not a problem when the alien obtains the immigrant visa through a consular office outside the United States. The Consulate applies a different set of laws, and there is no problem with unauthorized employment when the alien obtains his/her visa through CP.
“What if I simply don't mention this short period of employment when I complete the forms?”
In the first place, the forms for adjustment of status specifically ask you to list all of your employment for the past 5 years. If you deliberately misstate a fact on one of those forms, and the USCIS subsequently finds out that you lied, you have three problems.
One problem is that they have 5 years within which they can take your green card away and deport you. Section 246 of the Act says “If, at anytime within five years after the status of a person has been otherwise adjusted under the provisions of § 245… of this Act or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person if that occurred.”
Another problem is that since you lied on the forms, you may be charged with “document fraud.” Under § 274C of the Act, this carries mandatory deportation from the United States. Section 274C makes it unlawful for a person “knowingly (1) to forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a requirement of this Act.” And § 241(a)(3)(C) says, “Any alien who is the subject of a final order for violation of section 274C is deportable.”
Third, to make matters worse, to lie on federal forms in an effort to obtain an immigration benefit is a crime.
Section 1001 of the federal criminal code says that, “Whoever… makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned more than five years, or both.”
That second chance is made available by CP where the consulate assumes there has been unauthorized employment.
The consulate applies a completely different set of laws in considering whether to grant the immigrant visa to you. It is not at all the arbitrary system of nonimmigrant applications which you may have experienced in the past. The consulate will not deny the visa so long as you have all the papers that are required (such as birth and marriage certificates, etc) and so long as you are not in any of the “excludable classes.”
This means that if you do not have a communicable disease, are not a user or abuser of narcotics, are not a smuggler or a terrorist, etc, and if you have all the required documents, then you will obtain the visa.
The consulates see their jobs as issuing visas. The immigration officers see their jobs as enforcing immigration laws. Granting of benefits is a low priority to immigration officers.