When filing an immigrant petition, whether it be an employment-based or family-based petition, the applicant has the choice to either choose consulate processing or adjustment of status as filing options. Consulate processing involves applying for an immigrant visa at a U.S. embassy or consulate overseas and then returning to the U.S. on permanent resident status. On the other hand, adjustment of status filing allows the potential immigrant to receive his/her U.S. permanent resident status in the United States. All applicants must decide which filing procedure to follow before they can receive their U.S. permanent resident status, or “green card”. There are different aspects to choosing one filing procedure over another and each applicant should certainly take the time to weigh whichever situation is best for them.
Adjustment of Status
Adjustment of status constitutes most of the employment-based immigrant petition filings. That is usually because the applicants are present and already working in the U.S on a valid work visa such as H-1B or L-1. By choosing the adjustment of status option, which involves submitting the Form I-485 petition with the United States Citizenship and Immigration Service (USCIS), the applicant also becomes eligible for derivative benefits such as the I-765 employment authorization document, and the I-131 application for travel document (advance parole). Of course, the prospective immigrant’s eligibility for these benefits also depends on whether his/her own immigrant visa filing priority date (usually based on the filing date of the PERM alien labor certification) is ‘current’ or not. Recent retrogression, the non-availability of visa numbers, has meant that even if an immigrant applicant’s I-140 employment-based immigrant petition has been approved by USCIS, the applicant may still have to wait several years before a visa number becomes available. In that specific instance, the applicant would not yet be eligible to file the adjustment of status petition and would need to maintain valid immigration status at least until the time the applicant becomes eligible to file an adjustment case. We also recommend that the applicant continues to maintain valid immigration status until adjudication of the adjustment of status case.
Another advantage of opting for adjustment of status filing is the AC21 portability benefits. Provisions of the American Competitiveness in the Twenty-First Century Act (AC21) allow an I-485 adjustment of status applicant to switch jobs as long as the filed I-485 petition has been pending with USCIS for 180 days or more. To be on an even safer side, we also recommend that the applicant switches jobs only after the underlying I-140 employment-based immigrant petition has been approved by USCIS as well. The only condition with this AC21 portability provision is that the new job be the “same or similar” as the original position filed under the I-140 petition. Furthermore, the new employer must also notify USCIS that it will continue to sponsor the applicant based on the same employment conditions and wages as the initial I-140 petition. This AC21 portability provision is not available to those applicants who choose consulate processing.
Consular Processing
Not everyone chooses to file for adjustment of status. Some immigrant visa applicants are comfortable with choosing consulate processing while maintaining their nonimmigrant worker status in the U.S. However, this does mean the applicant would need to travel abroad – usually back to their home country – for the immigrant visa interview at the local U.S. embassy or consulate and then return to the U.S. as a permanent resident. If he/she has dependent family members, then they also need to accompany the principal immigrant visa applicant to the visa interview. For those family members who do not wish to join the principal applicant right away, or they are simply not yet ready to travel to the U.S., they are allowed to appear separately at the local U.S. consulate or embassy separately after the principal applicant has received their immigrant visa. They may pursue “following-to-join” visa applications at the consulate or embassy and travel to the U.S. within one year of the principal applicant receiving his/her permanent residence status.
Consulate processing used to be considered a faster way to achieve permanent resident status. That is because when visa numbers were ‘current’ earlier this decade, and sporadically and briefly as late as the summer of 2007, most immigrant visa applicants opted for adjustment of status in the U.S., thereby freeing up visa interview waiting times overseas in the various U.S. embassies and consulates. Essentially, this meant that immigrant visa applicants were able to be scheduled for visa interviews in a much more timely manner than waiting for USCIS to process and approve their I-485 petitions. However, with visa number retrogression, there really is not much of an advantage anymore between consulate processing versus adjustment of status.
Sometimes the immigrant visa applicant does not have a choice in the filing procedure. That is particularly true if the immigrant visa applicant actually resides abroad and he/she will not be entering the U.S. before they receive permanent resident status. This is usually the case with family-based petitions such as U.S. citizen or lawful permanent resident spouse sponsoring his or her spouse abroad. In those instances, the U.S. government agency that the overseas visa applicant interacts most with is the U.S. Department of State’s National Visa Center (NVC) and their local U.S. consulate or embassy. Assuming the visa number becomes available for the intending immigrant, the NVC would send written notification to the immigrant’s petitioner/employer in the U.S. and initiate consulate processing by first asking for the submission of visa fees, and then the submission of various visa application forms and supporting documentation (e.g. medical examination report, police clearance certificate etc.).
It should be pointed out that even if the immigrant visa applicant chooses one filing procedure over the other initially, there are opportunities throughout the filing process where it may be possible to change from consulate processing to adjustment of status, or the other way around. But in general, it is usually easier to switch from consulate processing to adjustment of status, than it is from adjustment of status to consulate processing, particular due to longer processing time issues for USCIS to transfer a ‘domestic’ file to a U.S. embassy or consulate overseas.
Conclusion
Consulate processing and adjustment of status filing are in many ways two sides of the same coin for an immigrant visa applicant to achieve U.S. permanent resident status. However, each immigrant visa applicant must make his/her choice based on his/her own individualized circumstances. We at Pasricha & Patel, LLC encourage everyone who is in this type of situation to contact our law firm for a consultation on how best to approach this situation.
Please note: Immigration laws and regulations are constantly changing and this article is provided for informational purposes only and is not to be construed or relied upon as legal advice under any circumstance. Please refer to our legal disclaimer for additional details.
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