Introduction
Lawful permanent residence (Green Card) status is conferred either through the issuance of an immigrant visa at a U.S. consulate or embassy abroad, or through the approval of an ‘adjustment of status’ application (Form I-485) by U.S. Citizenship & Immigration Services in the U.S. For those who are physically 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 scenario. Here we provide an overview so that the potential applicants can make an informed decision.
Advantages of ‘Adjustment of Status’ Over ‘Consular Processing’
1. Concurrent Filing Available
In some instances, the Adjustment of Status application can be filed together with the I-140 or I-130 immigrant petition. In these cases, applying for Adjustment of Status may be quicker than processing an immigrant visa at the consulate.
2. Protection To Aged-Out Children Through CSPA
If a child is nearing age 21, Adjustment of Status (AOS), especially concurrent processing, may protect the child better than consular processing through the Child Status Protection Act (CSPA). CSPA freezes the child’s age at the time of filing for adjustment of status application.
Let’s look at a case where Child Status Protection Act is used:
My Case Scenario
John
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.
As soon as John’s father has his Certificate of Naturalization they are going to file adjustment of status application 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.
3. An Interview Is Not Always Required
In many employment-based cases, there is no interview before USCIS approves the adjustment of status. The same is true for some types of family-based cases, including petitions filed for parents of a US citizen. There is always an interview in consular processing cases, unless the interview is waived due to age (under 14, over 80).
4. No International Travel Is Required In Adjustment of Status
If you are in the U.S., Consular Processing will require travel by the principal applicant and family members to the US Consulate or Embassy in the country of nationality or last residence. Adjustment of Status steps do not require any international travel.
5. Attorneys Can Be Present With The Applicant During AOS Interview
You have a right to have an attorney present at any adjustment of status interview if it takes place at USCIS office. Clients have no right to attorney representation at most US consulates.
6. Adjustment of Status Process Requires Less Documentation
Consular Processing generally requires a Police Certificate from every country you have resided for over 6 months from the age of 16. Obtaining police clearances from every country, especially those from which an applicant has no present connection, can be difficult and delay the immigrant visa processing substantially. Police certificates are not required in most Adjustment of Status cases.
7. Employment “Portability” Is Available To Employment-Based AOS Applicants
Under AC21, employment-based adjustment applicants can change employer after the AOS has been pending for 180 days without disrupting the green card process. For consular processing cases, the applicant must remain with the employer and/or the employer must have the intent to employ the applicant.
8. Adjustment of Status Applicants Can Obtain A Work Permit
Adjustment of Status applicants, including the spouse and children of the main applicant can obtain employment authorization card shortly after filing for adjustment of status. This may eliminate the need to extend or maintain nonimmigrant status during the pendency of the adjustment application (however, it is generally recommended to maintain H or L status). Consular Processing applicants are not eligible for employment authorization documents.
9. Waiver Applicants Can Remain In The U.S.
If an applicant is subject to a ground of inadmissibility under INA §212(a), for which a waiver is available, adjustment of status applicants can continue to work and stay with their family in the U.S. while the waiver is being reviewed. Consular processing applicants may find themselves stranded outside the U.S. while a waiver is being processed.
10. Denied Adjustment of Status Application Can Be Appealed
Adjustment of status applicants can refile or appeal in the event of a denial of the immigrant visa application.
11. Delays Do Not Affect AOS Applicants’ Ability To Live And Work In The U.S.
If there are USCIS delays in deciding an adjustment of status application, including delays related to security checks or other types of administrative processing, applicant 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.
12. AOS Provides A Status Bridge Between Nonimmigrant Status And 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 any nonimmigrant status presently being maintained by the foreign national.
My Case Scenario
Juanita
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.
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.
The safeguards attached to adjusting status in the U.S. frequently makes it the more attractive option in obtaining U.S. permanent residence. Despite all the advantages of Adjustment of Status, there are times when it may be advantageous to process an immigrant visa at a U.S. Consulate or Embassy abroad.
Advantages of Consular Processing Over Adjustment of Status
1. Consular Processing For Employment-Based Immigrant Visa Is Faster
The greatest advantage has traditionally been timing. Traditionally, immigrant visa processing at the consulate could save an employment based applicant 3 to 12 months depending upon the consulate involved, and the USCIS office having jurisdiction over the Adjustment of Status application. However, given the increasing delays in consular processing, most notably at the National Visa Center, 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.
2. Consular Processing Applicants Do Not Need To Obtain Travel Document
Consular Processing applicants have no restrictions on their ability to travel in and out of the U.S. while the application is pending. Upon the filing for Adjustment of Status application, the foreign national will have restrictions on travel outside of the U.S. without an Advance Parole, unless they are maintaining H or L status (All green card applicants should speak to an attorney regarding traveling out of the U.S. once an immigrant petition is filed due to possible immigrant intent issues).
3. Consular Processing Strengthens 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 US Consulate. An Adjustment of Status applicant will have to wait until the adjustment is granted before he or she can start the immigrant visa process for family members living abroad.
My Case Scenario
Sheila
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 green card adjustment of status before she could work in the U.S.
When she enters the U.S. with an immigrant visa she will be able to start a new job immediately.
Conclusion
Many factors go into choosing between Adjustment of Status and Consular Processing.
The relative advantages listed above should help permanent residence applicants make an informed judgment regarding the venue selection for the case completion.
To assess the best option between Consular Processing and Adjustment of Status for your specific situation Schedule A Free Immigration Consultation Today >>. Our experienced immigration lawyers will be happy to assist you.
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