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Adjustment of Status vs. Consular Processing
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Permanent residence (Green Card) status is conferred either through issuance of an immigrant visa at a U.S. consulate abroad or through approval of an ‘adjustment of status’ application (Form I-485) by the USCIS in the U.S. For those present in the U.S. both alternatives may be available. Foreign nationals going through the permanent residence process often find themselves trying to figure out which of the two alternatives is better for their case. This summary is for those applicants who have a choice.

Advantages of Adjustment of Status Over Consular Processing:
  • Concurrent Filing Available. Adjustment of Status is Quicker than Consular Processing: With concurrent filing process available for both employment and family based green cards, Adjustment of Status may be quicker than processing an immigrant visa at the consulate.

  • Adjustment of Status Provides Protection to Aged-Out Children thru CSPA: If a child is near age 21, Adjustment of Status (especially concurrent processing) may protect the child better than consular processing through the use of the Child Status Protection Act (CSPA). The CSPA will ‘freeze’ the child’s age at the time of filing the adjustment of status application.

    Let’s look at a case where Child Status Protection Act (CSPA) is used.

CASE SCENARIO #1
Q: John has been in the U.S. as an F-1 student for the last three years. His father came to the U.S. several years before as a permanent resident. John’s father will be sworn in as a U.S. citizen next week, only one month before John’s 21st birthday.   A: As soon as John’s father has his Certificate of Naturalization they are going to file and adjustment of status package for John. The filing of the I-130 and I-485 will ‘freeze’ John’s age at under 21 for immigration purposes allowing him to immigrate as an immediate relative child, even after he turns 21.

For more information keep reading.

  • Interview is Not Required in Employment-Based Adjustment of Status Unlike Consular Processing where Interview is Mandatory: In employment-based cases, there is usually no interview with adjustment of status. There is always an interview in a consular process.

  • No International Travel is Required in Adjustment of Status: Consular Processing may require travel by the principal applicant and family members to the American consulate in the country of nationality or last residence. Adjustment of Status does not require any international travel.

  • Attorneys Can be Present with the Applicant During Adjustment of Status Interview: Attorneys can be present if an interview does occur on an Adjustment of Status application at the USCIS. Clients have no right to attorney representation at most American consulates.

  • Adjustment of Status is Simple and Easy. No Vast Documents are Required unlike Consular Processing: Document availability is another issue, particularly as it relates to foreign police clearances. Police certificates from all countries where the foreign national lived for six months or more since age 16 are required in consular process. If a foreign national has lived in many countries for a substantial period of time, obtaining police clearances from every country, especially those from which they have no present connection, can be difficult and delay the immigrant visa processing substantially. Police certificates are not required in Adjustment of Status cases.

  • Provision to Change Employers Freely “Portability Provision” is Available to Employment-Based Adjustment of Status Applicants: Under AC21, employment-based adjustment applicants are not required to remain employed with their sponsoring employers if the USCIS does not adjudicate their application within 180 days (which virtually never occurs). This flexibility — known as portability — does not exist in consular processing.

  • Adjustment of Status Applicants Can Accept Employment in the U.S. unlike Applicants who Applied for Consular Processing: The adjustment applicant, and his spouse and children under age 21, can obtain employment authorization documents shortly after filing for adjustment of status. This may eliminate the need to extend nonimmigrant status during the pendency of the adjustment application (however, it may be recommended for some clients to maintain H or L status if possible). It is not possible to obtain an employment authorization document for those foreign nationals living in the U.S. during the pendency of the consular processing of an immigrant visa application.

  • If an applicant is subject to a ground of inadmissibility under INA §212(a), for which a waiver is available, the advantage for adjustment of status applicants is that the foreign national is in the U.S. and can continue to work and stay with their family while the waiver is being reviewed.

CASE SCENARIO #2
Q: Juanita entered the U.S. as a visitor two and a half years ago. She remained in the U.S. because she met the man of her dreams and she could not bear to be separated from him. They finally got married last week.   A: If Juanita were to travel to her home country of Peru to process her immigrant visa she would be subject to the ten year bar for overstaying her authorized stay as a visitor. Her husband would have to file a waiver for her and she would have to remain in Peru until the waiver is approved (and there is no guarantee that the waiver would be approved).

However, if she files for adjustment of status she will receive an automatic waiver of overstay because she is married to a U.S. citizen.

For more information keep reading.

  • Applicants May Appeal or Renew a Denied Application for Adjustment of Status whereas Consular Processing Applicants Cannot: There are procedures for appealing or renewing a denied application for adjustment of status. There are no such procedures for a denied immigrant visa application.

  • Applicants Stay Inside the U.S. even when their Application for Adjustment of Status is Under Processing: If there are USCIS delays in deciding an adjustment application, the foreign national is able to remain in the U.S. and continue working. If there are delays in the consular processing of an immigrant visa application following the interview, the foreign national may be stranded outside the U.S. until the problems are resolved.

  • Adjustment of Status Provides a Status Bridge between nonimmigrant status to Permanent Residence: The filing of an Adjustment of Status application provides a status bridge between nonimmigrant status and permanent residence. The preparation of an immigrant visa application at an American consulate abroad provides no status other than the nonimmigrant status presently being maintained by the foreign national. To avoid incurring the three and ten year bars, immigrant visa applicants in the U.S. must be vigilant to maintain an unexpired visa status.

On balance, the safeguards attached to adjusting status in the U.S. frequently make it the more attractive option in obtaining U.S. permanent residence. Yet with all of the advantages of Adjustment of Status there are times when it may be advantageous to process an immigrant visa at the consulate abroad.

Advantages of Consular Processing Over Adjustment of Status:

  • Consular Processing for Employment-Based Immigrant Visa is Faster than Adjustment of Status: The greatest advantage has traditionally been timing. Traditionally, immigrant visa processing at the consulate could save an employment based applicant 3 to 18 months depending upon the consulate involved and the USCIS office having jurisdiction over the Adjustment of Status application. However, given the increased delays in consular processing since September 11, in many cases consular processing may no longer offer any significant advantages in this respect. In addition, this advantage is neutralized where concurrent processing is utilized.

  • Consular Processing Applicants Does Not Need to Obtain Travel Document: Upon the filing of an Adjustment of Status application, the foreign national may have restrictions on travel outside of the U.S. With the exception of aliens maintaining H or L status, adjustment applicants must file for and obtain Advance Parole travel permission to leave the U.S., or their applications will be deemed abandoned. Applicants applying for immigrant visa at the consulate, on the other hand, are able to travel without restriction assuming that they have valid visas for travel. However, many nonimmigrants will be unable to travel in either case because of issues of immigrant intent on re-entry after filing an immigrant petition.

  • Consular Processing Applicants Does Not Have to Maintain Valid Status in the U.S.: An applicant for Adjustment of Status may need to maintain valid status during the pendency of the Adjustment of Status application. There is no such requirement for the immigrant visa applicant (however, if the immigrant visa applicant has 180 days of unlawful presence in the U.S., he or she will be subject to a three-year bar to returning to the U.S., or a ten-year bar if he or she had one year of unlawful presence)

  • Consular Processing Strengthen Family Unification: If the family (spouse and children) of the foreign national are outside of the U.S., it is often advantageous for the entire family to process their immigrant visa applications together at the American Consulate. Otherwise the family must wait for the principal alien to complete the adjustment of status before they can start the immigrant visa process.
Let’s take one last look at another situation. This is one where consular processing is to the advantage of the foreign national spouse.

CASE SCENARIO #3
Q: Sheila, an Australian citizen, married her fiancée Murat, a U.S. citizen.

Sheila has traveled to the U.S. numerous times over the three years she has been dating Murat. They had the opportunity to marry in the U.S. and have Sheila apply for adjustment of status, but instead decided, because of Sheila’s job, to marry in Australia and process her immigrant visa at the U.S. consulate there. Sheila is a partner in a large accounting firm in Sydney and did not want to wait the 90-120 days it would take to get work authorization through adjustment of status before she could work in the U.S.
  A:When she enters the U.S. with an immigrant visa she will be able to start a new job immediately.

For more information keep reading.

Conclusion – Adjustment of Status or Consular Processing:

Many factors go into choosing between Adjustment of Status or Consular Processing.

The relative advantages given above should help permanent residence applicants make an informed judgment regarding the venue for the completion of their case.

For more information on Consular Processing and Adjustment of Status please Contact VisaPro. Our experienced attorneys will be happy to assist you

We cover the latest happenings on work visas and family visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

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