Adjustment of Status vs. Consular Processing
Upon approval of an immigrant visa petition, a foreign national (FN) and dependent family members will gain the ability to apply for permanent resident status (i.e., for the "green card") provided that an immigrant visa number is available for the country category within the preference group. There are two procedures available for obtaining permanent residence: adjustment to permanent residence status in the United States, and consular processing of application for permanent residence abroad. This memo is intended to orient FNs to these two procedures so that they can make an informed decision whether to adjust status here or to immigrant visa process at a United States consulate or embassy in the country of last residence.
We begin this overview by detailing the procedures for becoming a permanent resident of the United States. When we file an immigrant visa petition we must indicate whether a FN wants to adjust to Permanent Residence here in the United States or process for an immigrant visa through a U.S. Consulate in their home country.
If a FN opts to file an adjustment application in the United States, our office will compile the draft forms which must be filled out by the FN. We also request additional required information such as a copy of birth and marriage certificates (if applicable), as well as all documentary evidence indicating valid status in the United States. All this information is sent in a packet to the CIS (formerly the INS) in order to prove that each FN is who they say they are, and that their presence and employment in the US has been legitimate. We may also simultaneously file applications requesting travel and employment permission, which will allow a FN and dependant family members (spouse and children) to return to the United States after travel abroad and work authorization during the processing of the adjustment application. The average processing time for an adjustment application is generally between 10-18 months (longer in some jurisdictions), though a FN can obtain the employment and travel authorization within three months of filing the applications.
Processing times do tend to vary. Whereas we had expected to see some shortening of adjustment processing times as a result of a November 1999 INS (now CIS) directive, we now fear a lengthening of processing times owing to certain additional background security checks. Once the adjustment application is approved, a FN will be able to obtain a permanent residence stamp in their passport as temporary evidence of this status until the "green card" arrives in the mail.
If a FN decides that he/she wants to visa process at a US Embassy or Consulate overseas, the procedure is as follows. We must first await receipt of a packet of blank forms (Packet 3) from the National Visa Center in New Hampshire which must be filled out by the FN. These forms request biographical information and are not very different from the forms used in the Adjustment of Status context. Once the forms are completed and originals have been signed, that packet is sent to the Embassy or Consulate (for Canadians, it is sent back to the National Visa Center). Then there is a waiting period, the length of which varies from country to country. During this waiting period, the FN may remain in the US only if he/she has a basis for stay and work (for example, H-1B authorization). Otherwise, the FN must return to his/her home country to await further instructions from the consulate/embassy. About one month before the appointment at the consulate or embassy, another packet will be sent to the FN from that office (Packet 4). This packet contains the notice of interview date, information about where to have the medical examination performed (in that country, not in the United States) and other additional materials. At the appointment, the FN must bring immediate family members (spouse and children) who will also become permanent residents. After the appointment, assuming the application for permanent residence is approved, the FN will receive a packet which, upon presentation to the U.S. Immigration Inspector upon reentry to this country, will finalize the application for permanent resident status as memorialized through a stamp (Temporary I-551) in their passport. The FN will receive a "green card" in the mail at their designated U.S. address.
Each of these competing processing pathways has its own advantages and disadvantages. As a general observation, most of our clients prefer the Adjustment of Status process over Immigrant Visa Processing, for a variety of reasons. Perhaps one of the most significant advantages of adjustment of status is the ability to obtain employment and travel authorization for dependent family members while still in the US. Usually, a FN’s dependents can obtain this authorization within three months of filing the adjustment application. An additional advantage in the adjustment context is the convenience of being able to work and wait in the United States throughout the processing of the application, even if the temporary, nonimmigrant visa status has expired. Also, with adjustment, the FN is able to address any discrepancies or problems during the processing of the adjustment application by submitting additional documentation, whereas in consular processing, the FN must explain any inconsistencies at the personal interview.
Perhaps the single biggest consideration is a trade-off between the relative ease and cost savings of going through the adjustment of status process here in the United States as opposed to consular processing which, while inconvenient, disruptive, and expensive, can generally be accomplished in a relatively shorter period of time. This could be of major significance in situations in which a child may "age out" (i.e., attain the age of 21 years) or owing to other considerations which require a shortened adjudication time.
A FN may be ineligible or uninterested in adjusting status. Ineligibility to adjust status may stem from various reasons, including: being in unlawful immigration status on the date of filing the adjustment application, invalid admission to the United States, violating the terms of the nonimmigrant status, or, being in unlawful status in the U.S. for a period of time which, in the aggregate, exceeds 180 days (though there are some exceptions to ineligibility to adjust).
Alternatively, a FN may consider that the adjustment process is extremely lengthy, or, if he/she is the recipient of an employment-based petition, the FN may want to become a permanent resident as soon as possible to be free to obtain new employment if desired. But before making the decision to consular process, the FN should understand the advantages and disadvantages of that path to permanent residence.
The main advantage of visa processing abroad is the following: it can be considerably faster than adjustment depending on the consulate/embassy. This is especially helpful if the FN has a child that will "age-out" soon (that is about to turn 21—rendering him/her unable to adjust derivative of an applicant parent) or is the beneficiary of an employment-based petition and the FN wants to be able to work for another employer as soon as possible. In addition, changes in employment, such as location of job, salary, continued existence of employer, do not have as great an impact in consular processing due to the relative speed of processing as compared with adjustment.
Consular processing contains several distinct disadvantages, however, which lead us to avoid it in all but the most clear-cut and problem-free cases. Some of the potential problems associated with consular processing are mere inconveniences. But others can lead to long-term difficulties which must be seriously considered such as unlawful presence in the U.S. for over 6 months after April 1, 1997. This can trigger 3 or 10 year bars against return to the US. So, leaving the US to consular process abroad could subject an affected individual to this potential risk. Additionally, it is often viewed as an inconvenience to consular process since the FN needs to physically travel to the foreign processing post. Also, he/she must take additional affirmative steps to obtain certain required information - for example, obtaining police clearances from every country the FN has spent more than 6 months in since the age of 16 (in adjustment, the security clearance is handled by the FBI after fingerprints have been taken) and scheduling an appointment for medical examination with the recommended physician in the home country. Furthermore, the FN’s legal rights are somewhat more limited at the consulate than at the CIS. For example, in consular processing there is no right to counsel. Plus, if the consular officer denies the application at the consulate or embassy, the FN has no right to judicial review of that denial (though the FN is entitled to know the legal basis for the decision). Finally, if there are any unforeseen problems, there is the possibility that the FN will be required to remain in their home country until the problems are straightened out.
As suggested above, there are relative advantages and disadvantages to these two application processes. If the FN is single, (or married but not interested in employment authorization for dependents), has a valid nonimmigrant visa which allows him/her to work in the US during the potentially lengthy waiting period between issuance of Packets 3 and 4, and is from a country that 1) does not have a significant backlog of applications waiting at the consulate/embassy, and 2) is not considered to have a high incidence of fraudulent documentation, the FN may want to consider consular processing. Otherwise, adjustment of status is probably the best alternative. However, the choice is obviously up to the FN.
We trust that this outline has clarified some of the issues regarding adjustment of status and consular processing, and will help FNs make decisions as to when the time is appropriate. If there are questions about the information contained in this letter, please feel free to contact us, and we would be happy to discuss specific issues in greater detail.
