Green Card Consular Processing V. Adjustment of Status (AOS).
When applying for a Lawful Permanent Residency (Green Card), whether filing an employment-based petition, a family-based petition, or self-petitioning, the final step of the journey will take one of two forms: Consular Processing or Adjustment of Status.
Consular Processing is for those who need or want to apply for a Green Card outside the U.S. The final step of obtaining the immigrant visa is processed by the Department of State and takes place at a U.S. consular post overseas.
The Immigrant Visa Petition is filed online using the DS-260 form. Once the DS-260 is processed, you will be asked to provide additional supporting documents and attend the interview at the designated post.
If your application for an immigrant visa is approved, the consulate will provide you with a machine-readable immigrant visa (MRIV) to present at the U.S. port of entry (POE ). At the POE (airport or land crossing), a Border Control Officer will stamp your passport, and you will enter the U.S. as a Lawful Permanent Resident. You will then be eligible for a Green Card.
Adjustment of Status
The second kind of processing is for those already in the U.S. with legal status who cannot or do not want to travel. When applying for a Green Card from within the U.S., the process is called Adjustment of Status, as the applicant adjusts their current temporary non-immigrant status to a Lawful Permanent Resident status.
In Adjustment of Status, the application is filed with U.S. Citizenship and Immigration Services (USCIS) while the applicant remains in the U.S. The Adjustment of Status Application form is the I-485, Application to Register Permanent Residence or Adjust Status. In many cases, you may also apply for employment authorization and travel documents to allow you to continue to work and travel while the application is pending.
When adjusting status, matters such as the expiration date of your current non-immigrant status and traveling abroad should be carefully considered and well-thought-out before initiating the process. Consulting with an experienced immigration attorney is highly recommended.
Things to Consider When Choosing Between Consular Processing and Adjustment of Status
In some cases, only one of these two routes might be available. In others, one is preferred, even if both are optional. Here are things to consider when choosing your path:
Advantages of Adjustment of Status
Since the applicant need not depart and reenter the U.S., this process may avoid some admissibility issues.
The applicant (and any family members applying for adjustment) may remain in the U.S. until a final decision is reached.
Applicants (and family members applying to adjust) may apply for employment authorization while the application is pending. Employment authorization can be extended if necessary.
Applicants (and family members applying to adjust status) may apply for Advance Parole, a travel document that does not require a visa. This can be particularly advantageous for people who frequently travel on short trips that are not long enough to get a visa or for foreign nationals for whom it isn't easy to obtain a visa.
In most employment-based adjustment applications, USCIS waives the requirement for an interview. If an interview is scheduled, the applicant has the right to bring immigration counsel.
This process involves only one government entity, USCIS, as opposed to the consular process, which involves USCIS, the Department of State, and Customs and Border Protection at admission.
Portability: Adjustment of Status applicants whose I-485 applications have been pending for 180 days or more can change jobs or employers as long as the new job is in the “same or similar occupational classification” as reflected in the original labor certification and/or Form I-140.
7th year H-1B extension: Adjustment of Status applicants who have a labor certification or Form I-140 filed 365 days or more before their H-1B six-year maximum (i.e., before the end of the 5th year of H-1B eligibility) can extend H-1B status in one year increments until adjudication of the I-485 is complete. (The ability to extend ends if the labor certificate or I-140 is denied.)
Concurrent filing: Most employment-based applicants may simultaneously file the I-140 petition and I-485 application. So do immediate relatives of U.S. citizens ( children, spouses, and parents of a citizen of the United States at least 21 years of age). The concurrent filing allows applicants to apply for employment authorization and advance parole early than if they waited for Forms I-140 or I-130 to be approved. Concurrent filing may result in earlier approval of permanent residence.
Disadvantages of Adjustment of Status
USCIS processing times are unpredictable, ranging from 6 months to 2 years. There is no way to accurately predict the processing time in any specific case.
If the applicant has criminal or immigration violations, they may not be eligible for Adjustment of Status.
Advantages of Consular Processing
Allows simultaneous Processing with family members who are currently living abroad.
Processing time may be faster than Adjustment of Status.
Disadvantages of Consular Processing
Leaving and reentering the U.S. raises issues of admissibility. If the applicant has overstayed their admission period as reflected on Form I-94, they may be barred from entering the U.S. for 3 or 10 years.
No employment authorization is available while the consular processing paperwork is pending.
The applicant must obtain a police certificate from each country of residence since age 16, which may be time-consuming and difficult.
This process requires an interview by a consular officer at the post abroad.
No appeal or other administrative review is available regarding a denial by the consular post.
Each case is unique and requires careful consideration before initiating the process. Consulting with an experienced immigration attorney is advisable to help you make the best decision.
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*This article has been prepared for general information purposes only. The information presented is not legal advice, is not to be acted on as such, may not be current, and is subject to change. Readers should contact their attorneys to obtain advice concerning any particular legal matter.
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