3. AOS vs. CP in Green Card Processing
Changes in the laws, the economy, and the political climate have caused us
to revise our general recommendation of consular processing (CP) versus
adjustment of status (AOS) in the last stage of the "green card" process. In
a soft economy and a post-9/11 world, we recommend, that "green card"
applicants seriously consider the AOS option over that of CP.
The need to inform our MURTHYBULLETIN and MurthyDotCom readers on this arose
when our Office recently received several similar calls and eMails. In each
instance, the caller had an approved labor certification, an approved I-140
petition, and a consular appointment scheduled within weeks. Airline tickets
had been purchased and the long-awaited green card appeared to be almost in
hand. Unfortunately, also in the hands of these individuals were notices of
termination of employment from their sponsoring employers, issued only days
before the consular interview was scheduled. As most of our readers are
aware, if there is no job offer, an immigrant visa cannot be issued under
existing law. The American Competitiveness in the Twenty First Century Act
(AC21) only provides relief when the AOS has been pending and remains
unadjudicated for 180 days. In that case, the AOS can be approved based upon
evidence that the applicant has a job offer in the same or similar
occupation. For those who have chosen the CP process, their entire case is
based on the future job offer, as were all cases under pre-AC21 law.
Prior to the enactment of AC21, we recommended consular processing as it
was, and still is, faster than adjustment of status. At that time it
generally made more sense to expedite the case. This approach was designed
to gain approval before any problems could develop with the offered
position. At that time the economy was stronger and the possibility of
losing employment was far less. The more pressing issues were the ability to
change employment (rather than being tied to the sponsoring employer for
many years) and the ability to obtain an immigrant visa while the priority
dates were current. In the current economy and with the increased
flexibility for adjustment applicants under AC21, the consular processing
route has lost its attractive qualities in most cases.
Post AC21, if one has filed for adjustment of status and loses his/her job,
the result is quite different from CP cases. In the softening economy some
employers have gone out of business entirely. In such instances it is far
more favorable under the AOS option. Under AC21, the loss of the job offer
is not critical to successfully attaining the "green card." The case can be
approved even if the sponsoring employer is no longer able to offer the
beneficiary a position. The applicant can take advantage of AC21\'s
portability provisions and obtain approval of the Adjustment of Status
application, provided the case has been unadjudicated for 180 days or more.
As indicated by INS processing times, it is a very rare case that is
adjudicated within 180 days. The applicant does need to obtain a new job
that is the same or similar to that described in the labor certification.
However, the adjustment applicant does not need to obtain the new position
immediately. The AOS applicant must be able to show the INS that he has a
qualifying new job offer when that the INS requests this information, either
in a Request for Evidence or at an in-person interview. Therefore, the
applicant has ample time in most cases to secure new employment.
Given this flexibility, all those now faced with the decision to consular
process or adjust status should give serious consideration to the adjustment
of status procedure, allowable since AC21. The benefit of filing an AOS
instead of CP is further increased with additional security requirements at
most consulates, such as the new police clearance certificates. Procedures
of this type are likely to increase po
Changes in the laws, the economy, and the political climate have caused us
to revise our general recommendation of consular processing (CP) versus
adjustment of status (AOS) in the last stage of the "green card" process. In
a soft economy and a post-9/11 world, we recommend, that "green card"
applicants seriously consider the AOS option over that of CP.
The need to inform our MURTHYBULLETIN and MurthyDotCom readers on this arose
when our Office recently received several similar calls and eMails. In each
instance, the caller had an approved labor certification, an approved I-140
petition, and a consular appointment scheduled within weeks. Airline tickets
had been purchased and the long-awaited green card appeared to be almost in
hand. Unfortunately, also in the hands of these individuals were notices of
termination of employment from their sponsoring employers, issued only days
before the consular interview was scheduled. As most of our readers are
aware, if there is no job offer, an immigrant visa cannot be issued under
existing law. The American Competitiveness in the Twenty First Century Act
(AC21) only provides relief when the AOS has been pending and remains
unadjudicated for 180 days. In that case, the AOS can be approved based upon
evidence that the applicant has a job offer in the same or similar
occupation. For those who have chosen the CP process, their entire case is
based on the future job offer, as were all cases under pre-AC21 law.
Prior to the enactment of AC21, we recommended consular processing as it
was, and still is, faster than adjustment of status. At that time it
generally made more sense to expedite the case. This approach was designed
to gain approval before any problems could develop with the offered
position. At that time the economy was stronger and the possibility of
losing employment was far less. The more pressing issues were the ability to
change employment (rather than being tied to the sponsoring employer for
many years) and the ability to obtain an immigrant visa while the priority
dates were current. In the current economy and with the increased
flexibility for adjustment applicants under AC21, the consular processing
route has lost its attractive qualities in most cases.
Post AC21, if one has filed for adjustment of status and loses his/her job,
the result is quite different from CP cases. In the softening economy some
employers have gone out of business entirely. In such instances it is far
more favorable under the AOS option. Under AC21, the loss of the job offer
is not critical to successfully attaining the "green card." The case can be
approved even if the sponsoring employer is no longer able to offer the
beneficiary a position. The applicant can take advantage of AC21\'s
portability provisions and obtain approval of the Adjustment of Status
application, provided the case has been unadjudicated for 180 days or more.
As indicated by INS processing times, it is a very rare case that is
adjudicated within 180 days. The applicant does need to obtain a new job
that is the same or similar to that described in the labor certification.
However, the adjustment applicant does not need to obtain the new position
immediately. The AOS applicant must be able to show the INS that he has a
qualifying new job offer when that the INS requests this information, either
in a Request for Evidence or at an in-person interview. Therefore, the
applicant has ample time in most cases to secure new employment.
Given this flexibility, all those now faced with the decision to consular
process or adjust status should give serious consideration to the adjustment
of status procedure, allowable since AC21. The benefit of filing an AOS
instead of CP is further increased with additional security requirements at
most consulates, such as the new police clearance certificates. Procedures
of this type are likely to increase po