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This is not a legal advice :
This posting is from
www.immilaw.com, please refer that site for more information.
A possible solution to delays of over one and a half years is to avoid Adjustment of Status (I-485) and instead process the
application for permanent residence ("green card"
status through the U.S. Embassy or Consulate in the applicant’s home
country or another country where he or she has resided for at least three months ("consular processing"
. Most U.S.
Embassies and Consulates are able to process the application in less than a year. For consular processing in India, Please
see our Jan/Feb 2000 Newsletter.
However, there may be several drawbacks to this approach, including the following:
An applicant must choose between adjustment of status (I-485) and consular processing, and cannot do both. By
choosing consular processing, the applicant gives up the right to obtain an employment authorization document (EAD)
while the application is pending. For that reason, we do not recommend consular processing for those with less than 18
months left before their H-1 or L-1 visa finally expires.
The consular processing times could also increase. If the delay at the INS persists, tens of thousands of applicants
could seek the alternative of consular processing, creating substantial backlogs at the U.S. Embassies and Consulates
as well.
Except for U.S consulate in India, there could be substantial delays in transferring the approved I-140 from the INS to the
U.S. embassy or consulate. Currently U.S. consulates in India will accept Attorney-certified copies. However U.S.
consulates in other countries may require an additional application (I-824) to be filed with the INS to request transfer of
the file to the National Visa Center (or "NVC"
in New Hampshire. In many cases, the INS can take up to nine months or
more to process the I-824 and to send the I-140 to the NVC. The NVC can then take another three or four months to
process the case and send it to the U.S. Embassy or Consulate. The NVC processing time could also increase if a
significant number of applicants choose consular processing instead of the I-485.
An interview is required at the U.S. Embassy or Consulate and the applicant’s appearance is generally required for the
entire day. In contrast, an interview in connection with an employment-based I-485 is rarely required.
The applicant must travel to the consulate on short (two or three week) notice, which often requires purchasing an
airline ticket at the highest price.
The applicant must arrive at the city in which the U.S. Embassy or Consulate is located at least several days before the
interview for a medical examination. The time required to be spent in that city (and away from work) may therefore be as
much as a week or more.
Additional documents such as home country police clearances and military service records may be required.
If a problem arises at the interview (such as a missing document or an issue involving a prior application for a visa) the
applicant may be stuck outside of the United States until the problem is resolved.
If the application is denied, there is little or no right to review or appeal. In contrast, if the I-485 is denied, the applicant
has the right to renew the application in removal proceedings, and has several options for review and appeal. Generally
the applicant may remain in the United States with employment authorization while those proceedings are pending.
It is possible to start with consular processing, and later file an application for adjustment of status (and abandon the consular
processing). For example, a person who has a year and a half left in H-1B status may commence consular processing, but
find after a year that it is unlikely that the case will be completed in time. By filing an application for adjustment of status (I-485)
the applicant can legally remain in the United States after the H-1B status finally expires and can obtain the employment
authorization document (EAD). However, the INS will have to retrieve the approved I-140 from the U.S. Embassy or Consulate
abroad, a process that could involve substantial additional delay. It is also possible to file for Consular Processing after an
application for Adjustment of Status has been filed. In some cases, delay by the INS in sending the file to the U.S. Consulate
is eliminated if the U.S. Consulate will accept Attorney-Certified copies.
