When it comes to getting a green card, there are two main paths—and choosing the right one can make all the difference in your case.
You can either:
- Apply from inside the U.S. through a process called Adjustment of Status, or
- Apply from outside the U.S. through a U.S. consulate in your home country (known as consular processing)
Each path has its own requirements, risks, and benefits. The right option for you depends on a few key things. In this article, we’ll walk you through how each option works and help you figure out which path is right for your situation.
Adjustment of Status (AOS): Applying Inside the U.S.
Adjustment of Status—often called AOS—is the process of applying for your green card from within the United States, without having to return to your home country.
To qualify, you typically must:
- Be physically present in the U.S.
- Have entered the U.S. lawfully—meaning with a visa or other form of inspection at a port of entry
One big exception applies: If you're an immediate relative of a U.S. citizen (a spouse, parent, or unmarried child under 21), you may still qualify for AOS even if you overstayed your visa or fell out of lawful status—as long as your original entry was legal.
Common AOS Scenarios:
- You came to the U.S. on a visitor visa and later married a U.S. citizen
- You’re a parent of a U.S. citizen who’s over 21 and you entered the U.S. with a visa
- You entered lawfully, overstayed, but are now eligible through a family relationship
Benefits of Adjustment of Status:
- You don’t have to leave the U.S. for a visa interview
- You can apply for work authorization and a travel permit while your case is pending
- You stay with your family and avoid the risks of leaving the country and facing reentry bars
AOS is often the safer and simpler path—if you qualify. But if you entered the U.S. without inspection or have other complications, this may not be the right option.
Consular Processing: Applying from Outside the U.S.
Consular processing is the path to a green card for people who can’t apply from inside the U.S. Instead, they complete the process through a U.S. consulate or embassy in their home country.
This option is most common for individuals who are:
- Currently living outside the U.S., or
- Inside the U.S. but entered without inspection (no visa, no border checkpoint), and
- Not eligible for Adjustment of Status
Key Steps in the Consular Process:
- I-130 Petition – Filed by the U.S. citizen or green card–holding relative
- Approval and Transfer to the NVC – Once USCIS approves the petition, the case moves to the National Visa Center (NVC)
- Document Collection – You’ll submit civil documents, forms, and fees through the NVC
- Consular Interview – You attend an interview at a U.S. embassy or consulate in your country
- Visa Issued
- Enter the U.S. as a Permanent Resident
Be Aware: You May Need a Waiver
If you’ve been unlawfully present in the U.S. for 180 days or more—or have other immigration violations—you could face reentry bars after leaving. In that case, you may need to apply for a waiver (like Form I-601A) before attending your interview.
Consular processing can be a great option for people with clean records or legal entries abroad but it can also be risky if waivers are needed. Legal advice is strongly recommended in these cases.
The 90-Day Rule Explained
If you’re thinking about applying for a green card after entering the U.S. on a temporary visa, you’ve probably heard of the 90-day rule. But what does it actually mean?
What Is the 90-Day Rule?
The 90-day rule is a guideline used by U.S. immigration officers (primarily at consulates and by USCIS) to evaluate whether a person misrepresented their intentions when they entered the U.S. on a temporary visa.
It’s not a law, but it helps the government determine whether someone might have used a visitor, student, or other temporary visa as a way to enter the U.S. with the hidden intent to stay permanently.
Who It Applies To
The 90-day rule is most often applied to people who enter the U.S. on:
- Tourist visas (B-1/B-2)
- Student visas (F-1)
- Other nonimmigrant visas that require you to maintain a “temporary intent”
What Can Trigger a Problem?
If you do something that suggests immigrant intent within 90 days of entering the U.S., it could raise red flags. Common examples include:
- Getting married to a U.S. citizen
- Filing for a green card (adjustment of status)
- Quitting school or a job tied to your visa
If these actions happen too soon after entry, USCIS or a consular officer may assume you lied about your original intent, which can lead to a denial or even accusations of visa fraud.
Why Timing and Intent Matter
It’s not illegal to fall in love or get married. But immigration officials care about what you intended at the time you entered the U.S.
If your actions suggest you planned to stay permanently—especially within the first 90 days—it could seriously complicate your case.
Bottom line: The timing of your marriage or green card application matters. If you're unsure how the 90-day rule applies to your situation, it's smart to get legal advice before taking any big steps.
Common Real-World Scenarios
Understanding how your situation fits into immigration law can be confusing—so here are a few real-world examples we see all the time:
- Married to a U.S. citizen and entered with a visa: Likely eligible to adjust status in the U.S., even if your visa expired.
- Married to a U.S. citizen but entered without inspection: Usually not eligible for adjustment of status; may need consular processing and a waiver.
- Engaged vs. already married: If engaged and your fiancé(e) is abroad, consider the K-1 visa. If already married, start the I-130 process.
- Overstayed visa but entered lawfully: May still qualify for adjustment of status if you're an immediate relative of a U.S. citizen.
- Living abroad while married to a U.S. citizen: You’ll go through consular processing to apply for your green card from your home country.
- Prior unlawful presence and reentry bars: May need a waiver (I-601A or I-601) before being approved for a green card.
When Waivers May Be Required
Not everyone qualifies for a green card right away—even with a valid marriage or family relationship. Certain immigration history issues can trigger the need for a waiver before your green card can be approved.
Common Situations That May Require a Waiver:
- Unlawful presence in the U.S. (180+ days without status)
- Prior removal or deportation orders
- Misrepresentation or fraud in a past immigration filing
Two Common Waivers to Know:
- I-601A: Provisional Waiver: Filed from inside the U.S. before leaving for a consular interview. It waives unlawful presence and helps minimize time spent outside the country.
- I-601: Standard Waiver: Filed after a denial at a U.S. consulate abroad. It covers more serious grounds, like criminal history, fraud, or multiple inadmissibility issues.
If you think you might need a waiver, don’t guess—talk to a lawyer first. Filing the wrong form (or missing the chance to file one) can delay or derail your case.
How to Choose the Right Path
There’s no one-size-fits-all answer when it comes to applying for a green card. The best path—Adjustment of Status or Consular Processing—depends on your unique situation.
Key Factors to Consider:
- Place of Residence: Are you currently inside or outside the U.S.?
- Entry History: Did you enter with a visa (lawful entry) or without inspection?
- Relationship Category: Are you an immediate relative (spouse, parent, or child of a U.S. citizen), or in a preference category?
- Timing and Intent: When did you enter? Did your actions shortly after arrival match the reason for your visa?
Even small details—like how long you overstayed or what kind of visa you had—can dramatically affect your options. That’s why it’s so important to get individualized legal advice before filing anything.
An experienced immigration attorney can help you evaluate your facts, avoid costly mistakes, and choose the path that gives you the best chance of success.
Common Mistakes to Avoid
Choosing the wrong green card path or misunderstanding the rules can lead to delays, denials, or even worse: the loss of eligibility altogether.
Here are some common mistakes we see all too often:
-
Filing for Adjustment of Status (AOS) when consular processing is required
If you entered without inspection or don’t qualify for AOS, filing the wrong way can get your case denied. -
Ignoring the 90-Day Rule
Marrying or filing for a green card too soon after entering on a visitor or student visa can trigger fraud concerns—even if your marriage is real. -
Leaving the U.S. without understanding reentry bars
If you’ve been unlawfully present for 180 days or more, leaving the U.S. can trigger a 3- or 10-year bar—even if your green card is otherwise approved. -
Assuming marriage alone guarantees green card eligibility
A valid marriage is important, but it doesn't fix every immigration issue. Entry history, visa violations, and prior removals still matter.
These are avoidable mistakes—if you have the right information and legal guidance from the beginning.
Conclusion
Whether you apply for your green card inside the U.S. or go through consular processing abroad, both paths can lead to success—if you choose the right one for your situation.
But making the wrong choice can lead to delays, denials, or long-term immigration consequences. That’s why it’s so important to talk to an experienced immigration attorney before you file anything. A short consultation can help you understand your options, avoid common mistakes, and build a clear plan forward.
Next steps?
- Review your entry and status history
- Identify your relationship category
- Schedule a legal consultation to confirm your best path forward
At Tingen Law, we’ve helped countless families navigate both Adjustment of Status and consular processing successfully—and we’re here to help you do the same.