On Jan 08 2008

Choosing Between Adjustment of Status and Consular Immigrant Visa Processing

The final stage of the permanent residence immigration process is either an application to adjust status to permanent residence filed with the USCIS or an application for an immigrant visa at a U.S. consulate overseas.

Some applicants can only adjust status (such as aliens applying under ‘245(i)’). Some applicants can only apply at a U.S. consulate (such as aliens ineligible to adjust status because of unauthorized employment). Some applicants have a choice. This summary is for applicants who have a choice.

Many factors go into advising a client who can choose between these two options. Depending upon the relative importance given by the client to these different factors, the client may appropriately choose one or the other option as being best. This analysis sets out the relative advantages of each option to enable the client to make an informed judgment.

Advantages of Adjustment of Status to Permanent Residence

  • With concurrent processing, adjustment of status may be quicker than consular immigrant visa processing.
  • If a child is near age 21, adjustment of status (especially concurrent processing) may protect the child better than consular immigrant visa processing.
  • In employment-based cases, there is usually no interview. There is always an interview on consular cases.
  • Consular cases require travel by the principal applicant and family members to the U.S. consulate in the country of nationality or last residence. Adjustment of status does not require any international travel.
  • Attorneys can be present if an interview does occur on an adjustment of status application at the USCIS. Clients have no right to attorney representation at many U.S. consulates.
  • Police certificates from all countries where the foreign national lived for six months or more since age 16 are required in consular cases. They are not required in adjustment of status cases.
  • Employment-based adjustment applicants are not required to remain employed with their sponsoring employers if the USCIS does not adjudicate their application within 180 days (which virtually never occurs). This flexibility ‘known as portability’ does not exist on cases filed only at a U.S. consulate.

The adjustment applicant, and his spouse and children under age 21, can obtain employment authorization documents shortly after filing for adjustment of status. This eliminates the need to extend nonimmigrant status during the pendency of the adjustment application. It is not possible to obtain an employment authorization document during the pendency of the consular processing of an immigrant visa application.

  • There are procedures for appealing or renewing a denied application for adjustment of status. There are no such procedures for a denied immigrant visa application.
  • If there are USCIS delays in deciding an adjustment application, the foreign national is able to remain in the United States and continue working. If there are delays in the consular processing of an immigrant visa application following the interview, the foreign national may be stranded outside the United States until the problems are resolved.

Yet with all of these advantages of adjustment of status there are times when it may be advantageous to process an immigrant visa application at a U.S. consulate.

Advantages of Consular Immigrant Visa Processing

  • The biggest advantage has traditionally been timing. Traditionally, immigrant visa processing at a U.S. consulate may save three to 18 months depending upon the U.S. consulate and the USCIS office that would have jurisdiction over the adjustment of status application. This advantage may be neutralized where concurrent processing is utilized.
  • Upon the filing of an adjustment of status application, the foreign national may have restrictions on travel outside of the United States. With the exception of aliens maintaining H or L status, adjustment applicants must file for and obtain advance parole travel permission to leave the United States. Immigrant visa applicants are able to travel without restriction assuming that they have valid visas for travel.
  • An applicant for adjustment of status may need to maintain valid status during the pendency of the adjustment of status application. There is no such requirement for the immigrant visa applicant (however, if the immigrant visa applicant has 180 days of unlawful presence in the United States, she will be subject to a three-year bar to returning to the United States; 10 years if she had one year of unlawful presence).
  • If the family (spouse and children) of the foreign national are outside of the United States, it is often advantageous for the entire family to process their immigrant visa applications together at the U.S. Consulate.

With these factors in mind, the permanent residence applicant should be able to make an informed judgment regarding the venue for completion of his permanent residence case.