Adjustment of Status vs. USCIS Consular Processing

Permanent residence (Green Card) status is conferred either through issuance of an immigrant visa (IV) by an American consular post 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
• 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 U.S. Consulate
• If a child is near age 21, Adjustment of Status (especially concurrent processing) may protect the child better than consular immigrant visa processing
• In employment-based cases, there is usually no interview with adjustment of status. There is always an interview in a consular case
• Consular cases 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 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
• 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 cases. 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
• 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 on cases filed only at a U.S. consulate
• 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 US 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.
• 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
• 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
• 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 application at an American consulate.

Advantages of Consular Processing
• The greatest advantage has traditionally been timing. Traditionally, immigrant visa processing at an American 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.
• 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. Immigrant visa applicants, 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.
• 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., she will be subject to a three-year bar to returning to the U.S., or a ten-year bar if she had one year of unlawful presence)
• 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.
Conclusion

Many factors come into play when choosing either Consular Processing or Adjustment of Status as the method for completing your Permanent residence Status petition. The relative advantages given above should help permanent residence applicants make an informed judgment regarding whether to go for Consular Processing or Adjustment of Status. We at VisaPro would be glad to analyze your situation and help you make the best decision.

Contact VisaPro if you have any questions regarding any type of employment based and family based petitions.

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