Consular Processing vs. Adjustment of Status: Which is Right for You?

Consular processing and adjustment of status are two means to the same end: obtaining permanent resident status in the United States. If you opt for consular processing, you would apply for an immigrant visa through the Department of State and must attend an interview at a U.S. Consulate in your country of residence abroad. If you opt for adjustment of status, on the other hand, you would remain in the United States and file an application with USCIS. Because these two separate agencies each have their own procedures and set of governing rules, there are pros and cons to both options. You should therefore take various considerations into account before making what is often a difficult decision.

To learn more about how both processes work in practice, take a tour of: How Consular Processing Works | How Adjustment of Status Works.

Advantages
Adjustment of Status	Consular Processing
Convenience Adjustment of status is convenient in the sense that applicants may simply remain in the U.S. while the application is adjudicated, and need not travel abroad for an interview. In fact, for most employment-based petitions, no interview is required unless the applicant has previously been out of status; USCIS suspects fraud; portability is invoked; or USCIS randomly selects an applicant for an interview. If an interview is scheduled, attorneys are permitted to attend the interview with the applicant whereas no attorney representation is allowed at consulates. The option to remain in the U.S. while the application is being processed is particularly important to aliens who have been unlawfully present in the United States for over 180 days in the past. Aliens who have been unlawfully present at some point for over 180 but less than 365 days are subject to a three year bar from readmission to the United States. Aliens who have been unlawfully present at some point for over 365 days are subject to a ten year bar from readmission to the United States. The three and ten year bars are triggered by the alien’s departure from the United States. Therefore aliens who would subject themselves to the bar by leaving the U.S. are well advised to adjust status so that they do not have to leave the U.S. until after they have received permanent resident status. Once lawfully admitted to permanent resident status, aliens are no longer subject to the bars. Finally, adjustment of status is convenient because applicants are not required to submit original documents in support of the application unless specifically requested to do so.	Quick Turn-Around Time The biggest advantage of using consular processing is that it is much quicker than Adjustment of Status in most cases. Adjustment of status applications are currently taking up to one year to process. Granted, the I-140 is filed concurrently, which means that there is no additional time allocated for the I-140 processing. This processing time is subject to constant change, but for some time it has been clear that even though the I-140 petition and consular processing applications are filed consecutively rather than concurrently, consular processing is still quicker in most cases. The alien choosing between consular processing and adjustment of status should consult the current I-140 and I-485 processing time reports for the service center at which his applications would be adjudicated, and compare them to the following time table for a typical consular processing application: I-140 Processing (Estimate processing time based on processing time report) Time from I-140 approval to applicant’s receipt of fee bill from National Visa Center (6-8 wks) Time from payment of fees to receipt of Packet 3 (4-6 wks) Time from submission of Packet 3 application materials to receipt of Appointment Notice (6-8 wks) Time from receipt of Appointment Notice to date of actual interview (4 wks) Total = 5-6 months, plus I-140 Processing Time* * Please note that all processing times are estimates and are subject to unforeseen delays and administrative changes. Processing times also vary from consulate to consulate. In some cases aliens with criminal records or with names similar to people with criminal records will be required to obtain an additional set of fingerprints to be run through the FBI’s National Crime Identification Center (NCIC) before an immigrant visa interview can be scheduled. This will delay a case by a couple of months.
Employment Authorization All adjustment of status applicants are permitted to obtain employment authorization, which allows dependent family members to work during the pendancy of the application and allows the principal applicant to use portability to work for a new employer once 180 days have passed and the I-140 has been approved.
Administrative Remedies are Available If USCIS denies an adjustment of status application, the alien may be placed in removal proceedings and the application could be renewed before an immigration judge. Alternatively, if the alien is maintaining H-1B status after the denial of the adjustment of status, then he cannot be placed into removal proceedings. He could appeal the denial of his adjustment of status application in federal district court.
Concurrent Filing Adjustment of Status applicants have the option of either filing the I-140 and I-485 concurrently or filing them consecutively. The concurrent filing option is the best choice in most cases, as it shortens the overall time for adjudication. However, concurrent filing is not a good idea when it is questionable whether the I-140 will be approved because if the I-140 is denied, the I-485 will be automatically denied. Because it is expensive to file an I-485 application (particularly if applications are being filed for an entire family), it is not worth spending the money unless the applicant is relatively certain that the I-140 will be approved.

Disadvantages
Adjustment of Status	Consular Processing
Lengthy Processing Times Adjustment of status takes much longer than consular processing in most cases. In addition, because processing times are, at best, just over a year, it is impossible to predict at the time the adjustment application is filed, how long it will take to adjudicate the application. Processing times are constantly changing.	Cost Consular processing can be very expensive. If the country at which the alien will apply for the immigrant visa is overseas, plane fare is expensive. Plus the alien must be able to leave work for approximately one week at a month’s notice, so that he can undergo the medical exam in his home country, wait for the exam results, and attend the interview there. In addition, the applicant must maintain his or her status in the U.S. until permanent residence is issued. This means he must continue to file petitions to extend his stay, which requires paying filing fees.
Lack of Portability Regulations AC21 was passed over two years ago and there are still no regulations in place to interpret the law. Therefore anyone using portability provisions when the regulations are published may discover that he has interpreted the law differently than the regulation-drafters. Even USCIS memoranda interpreting the law could be wrong. Anyone violating the as-yet unpublished AC21 regulations could be penalized upon their publication.	Maintenance of Status The applicant and his family members must maintain nonimmigrant status for the duration of the pending consular processing applications. Most nonimmigrant statuses have a limit on the duration of status. For example, L-1Bs may only maintain status for 5 years, L-1As for 7 years, and H-1Bs for 6 years. (One exception is that an H-1B beneficiary who has completed his sixth year may extend H-1B status indefinitely in annual increments if a Labor Certification or I-140 petition that was filed on his behalf has been pending for a year or more). If an alien’s nonimmigrant status will not allow him to remain in the United States for the duration of the consular processing application, then he will have to leave the country and not re-enter until after the consulate issues him an immigrant visa. Aliens for whom maintenance of status is an issue may wish to adjust status so that they continue to reside and work in the U.S. using EAD while their permanent residence applications are adjudicated.
	Applicants May Not Obtain an EAD All family members of a working age may obtain an Employment Authorization Document (EAD) while her adjustment of status application is pending. No such option is available to dependents of consular processing applicants. (Note that L-2 and E-2 dependent spouses may obtain employment authorization based on their nonimmigrant status). The family members of consular processing applicants may therefore experience significant delays in gaining eligibility to work in the U.S. The principal applicant in a consular processing application is also ineligible for EAD, meaning that if she files a new H-1B petition and uses the portability provisions of AC21 to work for a new employer, she will lose eligibility to consular process based on the I-140 filed by the previous employer. In consular processing cases, the employer that filed the I-140 petition must provide a written statement for the alien to present at the immigrant visa interview that it intends to employ the alien indefinitely after the alien obtains permanent residence. If, at the time of the interview, that same employer does not intend to continue employing the alien, the immigrant visa cannot be issued.
	Original Documents Required Consular processing applicants are required to present original documents either by mail to the National Visa Center or in person at the time of the consulate interview. Documents include birth certificates, marriage certificates, military records, divorce decrees, etc. For an adjustment of status application, on the other hand, the alien is only required to submit copies of supporting documents, unless original documents are requested, which is rare.
	No Administrative Remedies If a consular officer denies a case, there is virtually no recourse for the applicant. A senior consular officer may review the application, but if he affirms the denial, there is no way to appeal the decision. The applicant must start the entire process over again, with the filing of a new I-140 petition.

Tags: career expert, immigration, visas & green cards

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