Green Card
(I-485, Application to Register Permanent
Resident or Adjust Status)
To successfully process your application for adjustment of status, you
must, among numerous other requirements, have entered the United
States legally (inspected at a port of entry); or must have been "grand
fathered-in," or must qualify under one of numerous special immigrant
status.
Adjustment of status is a process that permits certain people in the
United States to apply for lawful permanent resident ("green card") status
without having to go abroad.
Who May Apply to Become a Lawful Permanent Resident While in the
United States?
You may be eligible to apply for adjustment to permanent resident status
if you are already in the United States and if one or more of the following
categories apply to you.
Family Member:
You are the spouse, parent, unmarried child under age 21, the unmarried
son or daughter over age 21, the married son or daughter, or the brother
or sister of a United States citizen and have a visa petition approved in
your behalf.
You are the spouse or unmarried son or daughter of any age of a lawful
permanent resident and you have a family-based visa petition approved
in your behalf.
Employment:
You are an alien who has an approved visa petition filed in your behalf by
a United States employer.
Visa Number:
If you are a Family-based or Employment-based applicant, you must
have an immigrant visa number available from the State Department
unless you are in a category that is exempt from numerical limitations.
Immediate relatives of United States citizens are exempt from this
requirement. Immediate relatives of U.S. citizens are parents, spouses,
and unmarried children under 21. (For instance, you can apply to adjust
to permanent resident status at the same time that your U.S. citizen
daughter files an application for you to become an immigrant.)
Other immigrant categories that are exempt from numerical limitations
and do not need a visa number include special immigrant juvenile and
special immigrant military petitions.
For the unmarried son or daughter (over 21 years of age) of a US Citizen,
brother or sister of a US Citizen, or the spouse or children of lawful
permanent residents, visa numbers are limited by law every year. This
means that even if the USCIS approves an immigrant visa petition for
you, you may not get an immigrant visa number immediately. In some
cases, several years could pass between the time the USCIS approves
your immigrant visa petition and the State Department gives you an
immigrant visa number.
Fiance(e):
You were a fiancé who was admitted to the United States on a K-1 visa
and then married the U.S. citizen who applied for the K-1 visa for you. (If
you married the U.S. citizen but not within the 90-day time limit, your
spouse also must now file USCIS Form I-130, Petition for Alien Relative ).
Your unmarried, minor children are also eligible for adjustment of status.
If you did not marry the U.S. citizen who filed the K-1 petition in your
behalf, or if you married another U.S. citizen or lawful permanent resident,
you are not eligible to adjust status in the United States.
Asylee:
You are an asylee or refugee who has been in the United States for at
least a year after being given asylum or refugee status and still qualify for
asylum or refugee status.
Diversity Visa:
You received notice from the Department of State that you have won a
visa in the Diversity Visa Lottery
Cuban Citizen:
You are a Cuban citizen or native who has been in the U.S. for at least a
year after being inspected, admitted, or paroled into the United States.
Your spouse and children who are residing with you in the United States
may also be eligible for adjustment of status.
U.S. Resident Since Before 01/01/72:
You have been a continuous resident of the United States since before
January 1, 1972. See 8 CFR 249.2(a), under “Jurisdiction.”
Otherwise Eligible Immediate Relatives:
If "otherwise eligible" to immigrate to the U.S., immediate relatives may
adjust status to LPR (get a "green card") in the United States even if they
may have done any of the following:
The following classes of people shall not receive adjustment of status:
The ABCs of Immigration – Consular Processing Versus Adjustment of
Status
by Greg Siskind and Amy Ballentine
There are two methods of securing permanent residence in the US once
a person is approved for immigration. One is called consular processing;
the other is adjustment of status. As the name implies, in consular
processing the applicant applies for and processes an immigrant visa at
a US consulate abroad, most often in their home country. Adjustment of
status is the process by which a person already in the US has their
immigration status adjusted to that of a permanent resident. The
applicant determines the desired method of processing at the time the
initial petition for classification as an immigrant is filed.
Consular Processing
In consular processing, the INS forwards the approved immigrant petition
to the National Visa Center (NVC), which is part of the State Department.
When an immigrant visa number becomes available, the NVC generates
a collection of documents known as Packet 3. Packet 3 includes the
State Department form for applying for an immigrant visa, an affidavit of
support, which must be filed in all family cases and in some employment-
based cases, and instructions on the process.
The applicant must complete the forms and return them to the
appropriate consulate. The applicant must also gather documentation,
including a passport, birth certificates, police certificates, court and
prison records if relevant, military records if relevant, and marriage and
divorce certificates for each person immigrating. Upon receipt of the
forms and notification that the applicant has obtained all necessary
documentation, the consulate will issue what is known as Packet 4.
Packet 4 includes the time for the visa interview appointment, as well as
information on obtaining the required medical examination.
If the application is approved, the person will be issued an immigrant
visa, which is good for only six months. If the person does not enter the
US within that period of time, the visa will expire and the opportunity to
immigrate will be lost.
If the application is denied, the principle consular officer at the post
reviews it. If the officer desires, he can get a second opinion from the
State Department. However, if, after this point, the denial is upheld, there
is no recourse for the applicant.
Consular processing was once the only way to obtain an immigrant visa,
as there was no adjustment of status process. When adjustment of
status was created, it became tremendously popular, due in large part to
the reentry bars that were created in 1996. However, as INS backlogs
have grown longer and longer, more and more people are looking at
consular processing to speed the process.
Adjustment of Status
A person applies for adjustment of status with the INS from within the US.
Along with the adjustment form, results of a medical examination, an
affidavit of support, if required, evidence of the approval for immigration
and a copy of the applicant’s passport must be submitted. Evidence of
any familial relationships must also be submitted, if family members are
seeking to adjust their status with the principle applicant.
If the applicant wishes to work or travel abroad while the adjustment of
status application is pending, additional forms must be filed. A person is
work and travel authorized for only one year at a time, so in many cases,
because of INS processing delays, the applicant must renew these
documents.
Not all adjustment of status applicants are interviewed, although the law
provides that any adjustment applicant may be interviewed. Interviews
are always conducted in marriage cases, but are less frequent in other
family relationships. Interviews are quite rare in employment-based
cases.
After approval for adjustment of status, it takes some months before the
physical green card is obtained. If the approval follows an interview, the
INS will stamp the applicant’s passport with an indication that they are a
US permanent resident. If there is no interview, the applicant will receive
a notice that the application has been approved, which they can take to a
local INS office and obtain the stamp. A few months later, they will receive
the green card.
Choosing Between Consular Processing and Adjusting Status
Deciding whether to pursue consular processing or adjusting status can
be a difficult choice. The chief advantage of consular processing is
speed. Consular processing is generally much faster than adjusting
status. Six to eight months is not unusual compared to one to three years
at various INS offices around the US.
Adjusting status has several advantages. First, processing can take
place with no traveling abroad. Also, the applicant can work while waiting
for processing to take place. Finally, processing in the US means that
potential bars on reentry can be avoided that might prevent consular
processing.
The question often arises over whether it is possible to pursue BOTH
consular processing and adjustment of status simultaneously. The
question is controversial. There is no statutory bar to processing both
ways, but the INS takes the position that if it learns that one is pursuing
both consular processing and adjustment of status at the same time, it
will consider an adjustment application abandoned. This would typically
arise when someone is in the process of adjusting status and files a
request with the INS to cable an approval notice to a consulate to initiate
consular processing. However, the issue will typically not arise in the
reverse circumstances – when one begins with consular processing and
then decides to pursue adjustment of status.
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.
USCIS Memorandum regarding changes in the process of becoming a
Permanent Resident
United States immigration regulations, procedures, and processing
times are always changing. Important decisions have to be made by
applicants desiring to obtain permanent resident status in light of such
changes. The purpose of this memo is to provide recent information
regarding changes in the process so that those in the process of
becoming permanent residents can make an informed decision based
on the available options. Specifically, the two options are: filing for
adjustment of status in the U.S. through the U.S. Citizenship and
Immigration Services (USCIS or Service) vs. filing for an immigrant visa
through a U.S. Department of State (DOS) Consulate or Embassy abroad.
When the Form I-l40 employment-based immigrant visa petition is
submitted to the USCIS Service Center having jurisdiction over the
intended area of employment, the petitioner must indicate whether the
beneficiary will apply for “consular processing” at an American Consulate
overseas for an immigrant visa or will apply for adjustment of status (AOS
or I-485) to permanent residence with the USCIS. If I-485 is selected, the
beneficiary of the I-140 has the option of “concurrent filing” of the I-140
and I-485. Concurrent filing can involve simultaneous filing of the I-140
and the I-485, or initial filing of the I-140, then filing of the I-485 while the I-
140 is still pending. Our policy on all I-140 filings where the beneficiary
does not choose “concurrent filing” is to request that USCIS send notice
of the approval to the National Visa Center (NVC): this allows the
beneficiary to choose whether to apply for the AOS or consular
processing after the I-140 has been approved.
A.
Adjustment of Status - The Advantages
A1.
Convenience. Since the application is filed by mail to the USCIS Service
Center having jurisdiction over the alien's place of residence, there is no
need to travel long distances and to incur the inconvenience and
expense of an interview abroad at an American Consulate.
A2.
Waiver of interview. A small percentage of all employment-based
applications for adjustment of status are returned to the local USCIS
district offices for interviews to ensure proper quality control. Otherwise
the interview requirement is usually waived, and the Service will simply
adjudicate the application based upon the forms and supporting
documentation which have been furnished. All family-based and diversity
visa (lottery) applications are interviewed.
A3.
Employment Authorization for principal, as well as dependent family
members. Adjustment applicants can apply for an Employment
Authorization Document (EAD) concurrently with, or after filing of the AOS
application. EAD applications involve processing times of approximately
90 days and are valid for a period of one year. H/L/O visa holders have
the option of filing for extension of nonimmigrant work authorization
instead of, or in addition to, filing for an EAD. The advantages to doing so
include longer work authorization validity periods, and maintenance of
nonimmigrant status in the unlikely event the AOS is denied. Our general
office policy is to encourage filing of an EAD concurrently with the AOS
application given its lengthy processing time, in the event it is needed at
a later point. Not only principal AOS applicants but their dependents may
apply for EADs. Therefore, H-4, O-3, and TD dependent family members,
who were prohibited from engaging in employment in the United States,
may apply for employment authorization as AOS applicants. EADs
provide an essentially unrestricted right to engage in employment or to
be self-employed. EADs may be extended in increments of one year until
the AOS application is adjudicated.
A4.
Permission to travel (advance parole authorization). All applicants for
AOS may apply to the USCIS Service Center for permission to depart the
United States temporarily after the adjustment application has been
accepted for processing. It has been taking 90+ days to complete the
processing of advance parole applications. The AOS applicant cannot
depart the United States while the advance parole is pending without
being deemed to have abandoned the adjustment application. However,
the local USCIS district offices do retain jurisdiction to adjudicate
advance parole applications for truly emergency and unforeseen reasons
(i.e., sudden serious illness or death of an immediate family member).
USCIS regulations which became effective on July l, l999 permit AOS
applicants who hold valid, multiple entry H/L visas to travel on those visas
without the need to apply for advance parole authorization, provided that
they do not violate their status as H-1B or L-1 nonimmigrants (this
means that they must not have actually used an EAD card to accept
employment other than with their H-l/L-1 employer, or stopped working
for that employer), and provided they present upon entry to the U.S. the
original AOS I-485 Receipt Notice A similar rule applies to dependent
AOS applicants: they cannot have actually used an EAD card to accept
employment in order to continue to use their H-4/L-2 visas, together with
their original I-485 Receipt Notice, to travel. Note that other nonimmigrant
visa holders, e.g. TNs and O-1s are excluded from this exception and are
considered to abandon their adjustment applications if they use their
nonimmigrant visas to travel.
A5.
Portability. On October 17, 2000, the President signed into law the
American Competitiveness in the 21st Century Act (AC-21). This change
in immigration law creates another advantage to filing for adjustment of
status rather than consular processing. Under AC-21, Section 106(c), if
the AOS application has been pending for 180 days or more, the AOS
applicant is permitted to change jobs with the same employer, or to
switch to another entirely different employer as well as geographic
location, provided that s/he continues to be employed in the “same or
similar occupation.” This is a radical departure from existing rules and
allows great flexibility to adjustment applicants. USCIS does expect to be
provided with notification of any change of employment and a description
of how that change in employment is in compliance with AC21 in that it is
within the “same or similar occupation”.
A6.
Police certificates not required. If you choose consular processing, you
have to obtain police certificates, in countries where the Department of
State (DOS)e considers them available, from every locality of the country
of your nationality or latest residence abroad where you lived since
attaining the age of 16. If you opt for consular processing, you will also
need to obtain police certificates from all other countries where you have
lived for at least one year. AOS applicants instead provide their
fingerprints for FBI and related agency processing, as well as arrest or
conviction records if any.
A7.
Attorney can be present if Interview is scheduled. In the event of an
interview at a local USCIS office, an attorney from our office can be
present at the interview. In contrast, an attorney will not be present at the
immigrant visa interview if you choose consular processing.
A8.
If something goes wrong. If there is a problem with an adjustment
application, e.g. it is denied, we can appeal the decision or seek some
other administrative relief. If there is a refusal of an immigrant visa by a
Consul abroad, it is more difficult to obtain review. Also, if there is a
processing delay while additional information/documentation is sought
while an AOS application is pending, the applicant can continue to renew
your EAD and advance parole documents until the issues are resolved.
In contrast, if there is a problem at the Consulate, the applicant may be
stranded outside the United States until the issues are resolved.
A9.
Potential job flexibility for concurrent filings. In concurrent filing cases, if
an employee is laid off or employment is otherwise terminated, or if the
employee expects to be transferred to another, but similar, position (e.g.,
a promotion or change in job location) with the same employer,
concurrent filing might protect his/her ability to continue to immigrate with
the same I-140 petition and I-485 application on file with USCIS. To have
this occur, USCIS would have to agree that the portability provisions of
AC21 apply, even in the case of termination of employment, and that the
new position is in the "same or similar occupation" to the position
identified in the I-140. In this situation, the employee would need
employment authorization to work for the new employer (either an EAD or
a new H-1B petition by that employer).
A10.
Potentially faster processing for concurrent filings. In concurrent filing
cases, there may be shorter overall processing times. If the employee’s
long term goal is to assist family members to immigrate to the U.S.,
faster adjudication of the I-485 might speed up their applications. In
addition, filing the I-485 earlier will also speed up a qualifying family
member’s request for work authorization.
B.
Adjustment of Status - The Disadvantages
In 1998 - 2000, the USCIS allowed a huge backlog of AOS applications to
accumulate, resulting in lengthy processing times. However, within the
past few years, the USCIS Service Centers have begun to attack the
backlogs, and we are seeing approvals on applications filed
approximately 6-15 months ago. It is important to note that processing
times vary among the USCIS Service Centers. For current USCIS Service
Center processing times, please refer to processing times on our
website.
B1.
Unpredictable processing times. The primary disadvantage of AOS in the
past has been lengthy and unpredictable processing times. As indicated
above, USCIS has been giving a higher priority to processing AOS
applications and the processing times are improving. However, AOS
processing times continue to be longer than consular processing. The
possibility of concurrent filing may actually serve to increase USCIS
processing times. Longer processing times have the potential to
prejudice the applications of dependent children. Under the terms of the
Child Status Protection Act signed into law on August 6, 2002 however,
dependents may be considered under 21 for the purpose of eligibility to
apply for permanent residence. As a result, dependent children who were
under the age of 21 when the application was initially submitted, but who
become 21 years of age while the application is still pending, may or may
not lose their eligibility for permanent resident status depending on the
particular circumstance.
B2.
Concurrent Filings:
a.
Changes in the USCIS regulation. At this time, we are working with an
interim rule and without any interpretive or implementing memorandum
from the USCIS. If an employee proceeds with concurrent filing, there is
no guarantee that USCIS will not make changes to the interim rule as it
currently stands, or make interpretations that we have not anticipated.
b.
Risk of denial of the I-140. Filing the I-485 application enables the
employee and dependents to concurrently file applications for
Employment Authorization Document [EAD or I-765], and Advance Parole
travel authorization [AP or I-131]. Despite these independent bases for
work and travel authorization, we recommend that AOS applicants
maintain their underlying nonimmigrant status, (at least until the I-140 is
approved). This will mean additional fees for the employer if
nonimmigrant visa extensions are required, as well as possible
unnecessary usage of limited time in H/L status. For this reason, we
currently recommend that if the I-140 is supported by a strong labor
certification, the I-485 should be filed concurrently. However, we
recommend that an I-140 supported by a labor certification that has risks
such as a “substituted” employee, or an I-140 that is not supported by a
labor certification [e.g., an Outstanding Researcher petition, or
Extraordinary Ability petition] should be filed separately, and the I-485 not
be filed until the I-140 is approved. We believe that this recommendation
gives the employee the best chance of avoiding a situation where the I-
140 is denied months after a concurrent filing, leaving the employee and
the employer with an I-485 that has no legal basis. In that case, absent a
valid non-immigrant status, the employee would be out-of-status and
faced with the prospect of trying to reinstate status and employment
authorization.
c.
Possible inapplicability of AC21 "portability". It is unclear whether the
AC21 "portability" rules will apply to concurrent filings. Therefore, it is
unclear what action the USCIS would take if the I-140 was denied after
the I-485 application was pending for more than 180 days. If USCIS
decides that in such cases no portability is allowed, the AOS applicant
would be required to ask the employer to begin the immigration process
all over again, including a new non-immigrant visa petition (if eligible), a
new labor certification (if required), a new I-140, etc. Given the limits on
the amount of time one can remain in H or L status, the employee might
have to leave the U.S. and complete the process from abroad. There is
also the risk that a new employer would not be interested in supporting
the immigration process at all.
C.
Consular Processing - The Advantages
C1.
Shorter Processing Times. As noted above, the primary advantage of
consular processing has been shorter processing times compared to
AOS; although, as USCIS processing times get shorter, this particular
advantage becomes less and less important. If the USCIS properly and
timely forwards the approved I-l40 employment-based preference petition
to the National Visa Center of the U.S. Department of State, it is
conceivable that an immigrant visa appointment at an American
Consulate could be scheduled within no more than one year, depending
upon the particular Consulate's workload. If the applicant for an
immigrant visa is in possession of a valid nonimmigrant visa, the
individual may travel freely while waiting for the visa appointment to be
scheduled. Please note, however, that TN nonimmigrants must be more
cautious with international travel, since they must establish at the time of
each TN re-entry into the United States that they are working temporarily
in this country and that they have a residence abroad which they have no
intention of abandoning. This can be difficult if they have started the green
card process. Shorter processing times are particularly advantageous to
the applications of dependent children. Under the terms of the Child
Status Protection Act signed into law on August 6, 2002 however,
dependents may be considered under 21 for the purpose of eligibility to
apply for permanent residence. As a result, dependent children who were
under the age of 21 when the application was initially submitted, but who
become 21 years of age while the application is still pending, may or may
not lose their eligibility for permanent resident status depending on the
particular circumstance.
D.
Consular Processing – The Disadvantages
D1.
Inconvenience/cost. The primary disadvantages are the inconvenience
and expense of traveling to the American Consulate to appear for the
required interview. Unlike the USCIS, DOS does not waive the interview
requirement and it applies to all family members seeking immigrant
visas irrespective of age. The interview may well be scheduled at a time
that does not fit well with employment considerations and personal
schedules in the United States; rather, the interview is scheduled at a
time that is convenient to the Consulate, not the applicant. Appointment
dates are generally difficult to change and will result in additional delays
in the application process. While attorneys of record may routinely appear
at interviews for which their clients are scheduled by the USCIS, the
same does not hold true for DOS; attorneys are normally barred from
appearing with their clients in the interview room, and may be barred
from even entering the Consulate itself.
D2.
Documentary requirements. Documentary requirements are different and
generally more onerous for consular processing applicants. Most
nationals must obtain police clearances from all countries in which they
have resided for more than six months since reaching the age of 16 if the
U.S. Department of State considers such records to be available. Those
who have served in a foreign military organization must obtain a record of
their military service. For information regarding whether DOS considers
police, military, and other vital records available, please review the DOS
website at http://travel.state.gov/reciprocity/index.htm. The medical
examination will be scheduled with an approved physician or medical
clinic selected by the Consulate and may require the applicant and
accompanying family members to appear in the foreign country up to one
week in advance of the interview date; medical examinations conducted
by USCIS-approved physicians or clinics are not acceptable.
D3.
No Work Authorization for Dependent Family Members. The EAD
application available to AOS applicants is not available to applicants for
immigrant visas through the consulate. Therefore accompanying family
members in H-4, O-3 and TD status who have not been able to work in
the United States will continue to be unable to work until their immigrant
visas have been issued and they have been readmitted to the United
States as permanent residents. Since the EAD card can normally be
obtained within three months, and the immigrant visa interview may well
take a year to be scheduled, this can result in a considerable delay in
obtaining employment authorization.
D4.
No AC21 "portability". AC21 section 106 allows for portability for AOS
applicants if there are changes in the job offer so long as the new job is
for a “same or similar occupation” and so long as the AOS is pending for
at least 180 days. This relief only applies to adjustment applicants.
Therefore, someone who opts for CP rather than AOS is forgoing the
possibility of porting their application for permanent residence to another
employer or to another job if such an event occurs. If someone chooses
to process through CP, major changes which may occur in the nature of
the job duties or geographical location of employment before the CP
interview, or prior to admission as an immigrant following the CP
interview, can serve to render the approved labor certification and/or I-140
petition invalid. If the employer goes out of business, or is acquired by
another company which has no intention of continuing the permanent
resident process, there will be no basis for approval of the CP application
for a permanent resident visa. For CP cases, the offer of employment
which provided the initial basis of the filing of the CP application must
continue in effect until the applicant has been granted lawful permanent
resident status.
This memorandum is based on information and processing time
estimates provided to us by the USCIS. It is possible that USCIS may
change their priorities in the future in such a way that processing times
for adjustment of status may be reduced or lengthened.
As this memorandum hopefully makes clear, this is not a "one size fits
all" situation. Many factors have to be taken into account before an
applicant for permanent resident status makes the decision to either
apply for adjustment of status with the USCIS or for an immigrant visa at
a US consulate abroad, and neither option is going to be a perfect fit. All
applicants should consult with their immigration attorney before making
a final decision to pursue either option. By instructing the Service in item
4 of the Form I-140 to "send the petition to NVC" where concurrent filing is
not desired, we are providing applicants with the maximum amount of
flexibility and are leaving their options open to either adjust or go through
consular processing.
(I-485, Application to Register Permanent
Resident or Adjust Status)
To successfully process your application for adjustment of status, you
must, among numerous other requirements, have entered the United
States legally (inspected at a port of entry); or must have been "grand
fathered-in," or must qualify under one of numerous special immigrant
status.
Adjustment of status is a process that permits certain people in the
United States to apply for lawful permanent resident ("green card") status
without having to go abroad.
Who May Apply to Become a Lawful Permanent Resident While in the
United States?
You may be eligible to apply for adjustment to permanent resident status
if you are already in the United States and if one or more of the following
categories apply to you.
Family Member:
You are the spouse, parent, unmarried child under age 21, the unmarried
son or daughter over age 21, the married son or daughter, or the brother
or sister of a United States citizen and have a visa petition approved in
your behalf.
You are the spouse or unmarried son or daughter of any age of a lawful
permanent resident and you have a family-based visa petition approved
in your behalf.
Employment:
You are an alien who has an approved visa petition filed in your behalf by
a United States employer.
Visa Number:
If you are a Family-based or Employment-based applicant, you must
have an immigrant visa number available from the State Department
unless you are in a category that is exempt from numerical limitations.
Immediate relatives of United States citizens are exempt from this
requirement. Immediate relatives of U.S. citizens are parents, spouses,
and unmarried children under 21. (For instance, you can apply to adjust
to permanent resident status at the same time that your U.S. citizen
daughter files an application for you to become an immigrant.)
Other immigrant categories that are exempt from numerical limitations
and do not need a visa number include special immigrant juvenile and
special immigrant military petitions.
For the unmarried son or daughter (over 21 years of age) of a US Citizen,
brother or sister of a US Citizen, or the spouse or children of lawful
permanent residents, visa numbers are limited by law every year. This
means that even if the USCIS approves an immigrant visa petition for
you, you may not get an immigrant visa number immediately. In some
cases, several years could pass between the time the USCIS approves
your immigrant visa petition and the State Department gives you an
immigrant visa number.
Fiance(e):
You were a fiancé who was admitted to the United States on a K-1 visa
and then married the U.S. citizen who applied for the K-1 visa for you. (If
you married the U.S. citizen but not within the 90-day time limit, your
spouse also must now file USCIS Form I-130, Petition for Alien Relative ).
Your unmarried, minor children are also eligible for adjustment of status.
If you did not marry the U.S. citizen who filed the K-1 petition in your
behalf, or if you married another U.S. citizen or lawful permanent resident,
you are not eligible to adjust status in the United States.
Asylee:
You are an asylee or refugee who has been in the United States for at
least a year after being given asylum or refugee status and still qualify for
asylum or refugee status.
Diversity Visa:
You received notice from the Department of State that you have won a
visa in the Diversity Visa Lottery
Cuban Citizen:
You are a Cuban citizen or native who has been in the U.S. for at least a
year after being inspected, admitted, or paroled into the United States.
Your spouse and children who are residing with you in the United States
may also be eligible for adjustment of status.
U.S. Resident Since Before 01/01/72:
You have been a continuous resident of the United States since before
January 1, 1972. See 8 CFR 249.2(a), under “Jurisdiction.”
Otherwise Eligible Immediate Relatives:
If "otherwise eligible" to immigrate to the U.S., immediate relatives may
adjust status to LPR (get a "green card") in the United States even if they
may have done any of the following:
- worked without permission,
- remained in the U.S. past the period of lawful admission (e.g.,
past the expiration date on your I-94) and filed for adjustment of
status while in an unlawful status because of that, - failed otherwise to maintain lawful status and with the proper
immigration documentation, or - have been admitted as a visitor without a visa under sections 212
(l) or 217 of the Act (which are the 15-day admission under the
Guam visa waiver program and the 90-day admission under the
Visa Waiver Program, respectively). Please note: If a person came
into the U.S. illegally, that person is barred from adjusting their
status to LPR (cannot obtain a green card) even if he or she
marries a U.S. citizen or otherwise becomes an immediate
relative. An immediate relative must meet the eligibility
requirement of being “inspected and admitted or paroled into the
United States.”
The following classes of people shall not receive adjustment of status:
- You entered the U.S. while you were in transit to another country
without obtaining a visa. - You entered the U.S. while you were a nonimmigrant crewman.
- You were not admitted or paroled into the United States after
being inspected by a U.S. Immigration inspector. - You are employed in the United States without USCIS
authorization or you are no longer legally in the country (except
through no fault of your own or for some technical reason). This
rule does not apply to you if:
- You are the immediate relative of a U.S. citizen (parent, spouse, or
unmarried child under 21 years old).
- Certain foreign medical graduates, international organization
employees and family members. - You are a J-1 or J-2 exchange visitor who must comply with the
two-year foreign residence requirement, and you have not met or
been granted a waiver for this requirement. - You have an A (diplomatic status), E (treaty trader or investor), or
G (representative to international organization) nonimmigrant
status, or have an occupation that would allow you have this
status. This rule will not apply to you if you complete USCIS Form
I-508 (I-508F for French nationals) to waive diplomatic rights,
privileges and immunities. If you are an A or G nonimmigrant, you
must also submit USCIS Form I-566. - You were admitted to Guam as a visitor under the Guam Visa
Waiver Program. (This does not apply to immediate relatives.) - You were admitted into the United States as a visitor under the
Visa Waiver Program. (This rule does not apply to you if you are
the immediate relative of a U.S. citizen (parent, spouse, or
unmarried child under 21).) - You are already a conditional permanent resident.
- You were admitted as a K-1 fiancé but did not marry the U.S.
citizen who filed the petition for you. Or, you were admitted as the
K-2 child of a fiancé and your parent did not marry the U.S. citizen
who filed the petition for you.
The ABCs of Immigration – Consular Processing Versus Adjustment of
Status
by Greg Siskind and Amy Ballentine
There are two methods of securing permanent residence in the US once
a person is approved for immigration. One is called consular processing;
the other is adjustment of status. As the name implies, in consular
processing the applicant applies for and processes an immigrant visa at
a US consulate abroad, most often in their home country. Adjustment of
status is the process by which a person already in the US has their
immigration status adjusted to that of a permanent resident. The
applicant determines the desired method of processing at the time the
initial petition for classification as an immigrant is filed.
Consular Processing
In consular processing, the INS forwards the approved immigrant petition
to the National Visa Center (NVC), which is part of the State Department.
When an immigrant visa number becomes available, the NVC generates
a collection of documents known as Packet 3. Packet 3 includes the
State Department form for applying for an immigrant visa, an affidavit of
support, which must be filed in all family cases and in some employment-
based cases, and instructions on the process.
The applicant must complete the forms and return them to the
appropriate consulate. The applicant must also gather documentation,
including a passport, birth certificates, police certificates, court and
prison records if relevant, military records if relevant, and marriage and
divorce certificates for each person immigrating. Upon receipt of the
forms and notification that the applicant has obtained all necessary
documentation, the consulate will issue what is known as Packet 4.
Packet 4 includes the time for the visa interview appointment, as well as
information on obtaining the required medical examination.
If the application is approved, the person will be issued an immigrant
visa, which is good for only six months. If the person does not enter the
US within that period of time, the visa will expire and the opportunity to
immigrate will be lost.
If the application is denied, the principle consular officer at the post
reviews it. If the officer desires, he can get a second opinion from the
State Department. However, if, after this point, the denial is upheld, there
is no recourse for the applicant.
Consular processing was once the only way to obtain an immigrant visa,
as there was no adjustment of status process. When adjustment of
status was created, it became tremendously popular, due in large part to
the reentry bars that were created in 1996. However, as INS backlogs
have grown longer and longer, more and more people are looking at
consular processing to speed the process.
Adjustment of Status
A person applies for adjustment of status with the INS from within the US.
Along with the adjustment form, results of a medical examination, an
affidavit of support, if required, evidence of the approval for immigration
and a copy of the applicant’s passport must be submitted. Evidence of
any familial relationships must also be submitted, if family members are
seeking to adjust their status with the principle applicant.
If the applicant wishes to work or travel abroad while the adjustment of
status application is pending, additional forms must be filed. A person is
work and travel authorized for only one year at a time, so in many cases,
because of INS processing delays, the applicant must renew these
documents.
Not all adjustment of status applicants are interviewed, although the law
provides that any adjustment applicant may be interviewed. Interviews
are always conducted in marriage cases, but are less frequent in other
family relationships. Interviews are quite rare in employment-based
cases.
After approval for adjustment of status, it takes some months before the
physical green card is obtained. If the approval follows an interview, the
INS will stamp the applicant’s passport with an indication that they are a
US permanent resident. If there is no interview, the applicant will receive
a notice that the application has been approved, which they can take to a
local INS office and obtain the stamp. A few months later, they will receive
the green card.
Choosing Between Consular Processing and Adjusting Status
Deciding whether to pursue consular processing or adjusting status can
be a difficult choice. The chief advantage of consular processing is
speed. Consular processing is generally much faster than adjusting
status. Six to eight months is not unusual compared to one to three years
at various INS offices around the US.
Adjusting status has several advantages. First, processing can take
place with no traveling abroad. Also, the applicant can work while waiting
for processing to take place. Finally, processing in the US means that
potential bars on reentry can be avoided that might prevent consular
processing.
The question often arises over whether it is possible to pursue BOTH
consular processing and adjustment of status simultaneously. The
question is controversial. There is no statutory bar to processing both
ways, but the INS takes the position that if it learns that one is pursuing
both consular processing and adjustment of status at the same time, it
will consider an adjustment application abandoned. This would typically
arise when someone is in the process of adjusting status and files a
request with the INS to cable an approval notice to a consulate to initiate
consular processing. However, the issue will typically not arise in the
reverse circumstances – when one begins with consular processing and
then decides to pursue adjustment of status.
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.
USCIS Memorandum regarding changes in the process of becoming a
Permanent Resident
United States immigration regulations, procedures, and processing
times are always changing. Important decisions have to be made by
applicants desiring to obtain permanent resident status in light of such
changes. The purpose of this memo is to provide recent information
regarding changes in the process so that those in the process of
becoming permanent residents can make an informed decision based
on the available options. Specifically, the two options are: filing for
adjustment of status in the U.S. through the U.S. Citizenship and
Immigration Services (USCIS or Service) vs. filing for an immigrant visa
through a U.S. Department of State (DOS) Consulate or Embassy abroad.
When the Form I-l40 employment-based immigrant visa petition is
submitted to the USCIS Service Center having jurisdiction over the
intended area of employment, the petitioner must indicate whether the
beneficiary will apply for “consular processing” at an American Consulate
overseas for an immigrant visa or will apply for adjustment of status (AOS
or I-485) to permanent residence with the USCIS. If I-485 is selected, the
beneficiary of the I-140 has the option of “concurrent filing” of the I-140
and I-485. Concurrent filing can involve simultaneous filing of the I-140
and the I-485, or initial filing of the I-140, then filing of the I-485 while the I-
140 is still pending. Our policy on all I-140 filings where the beneficiary
does not choose “concurrent filing” is to request that USCIS send notice
of the approval to the National Visa Center (NVC): this allows the
beneficiary to choose whether to apply for the AOS or consular
processing after the I-140 has been approved.
A.
Adjustment of Status - The Advantages
A1.
Convenience. Since the application is filed by mail to the USCIS Service
Center having jurisdiction over the alien's place of residence, there is no
need to travel long distances and to incur the inconvenience and
expense of an interview abroad at an American Consulate.
A2.
Waiver of interview. A small percentage of all employment-based
applications for adjustment of status are returned to the local USCIS
district offices for interviews to ensure proper quality control. Otherwise
the interview requirement is usually waived, and the Service will simply
adjudicate the application based upon the forms and supporting
documentation which have been furnished. All family-based and diversity
visa (lottery) applications are interviewed.
A3.
Employment Authorization for principal, as well as dependent family
members. Adjustment applicants can apply for an Employment
Authorization Document (EAD) concurrently with, or after filing of the AOS
application. EAD applications involve processing times of approximately
90 days and are valid for a period of one year. H/L/O visa holders have
the option of filing for extension of nonimmigrant work authorization
instead of, or in addition to, filing for an EAD. The advantages to doing so
include longer work authorization validity periods, and maintenance of
nonimmigrant status in the unlikely event the AOS is denied. Our general
office policy is to encourage filing of an EAD concurrently with the AOS
application given its lengthy processing time, in the event it is needed at
a later point. Not only principal AOS applicants but their dependents may
apply for EADs. Therefore, H-4, O-3, and TD dependent family members,
who were prohibited from engaging in employment in the United States,
may apply for employment authorization as AOS applicants. EADs
provide an essentially unrestricted right to engage in employment or to
be self-employed. EADs may be extended in increments of one year until
the AOS application is adjudicated.
A4.
Permission to travel (advance parole authorization). All applicants for
AOS may apply to the USCIS Service Center for permission to depart the
United States temporarily after the adjustment application has been
accepted for processing. It has been taking 90+ days to complete the
processing of advance parole applications. The AOS applicant cannot
depart the United States while the advance parole is pending without
being deemed to have abandoned the adjustment application. However,
the local USCIS district offices do retain jurisdiction to adjudicate
advance parole applications for truly emergency and unforeseen reasons
(i.e., sudden serious illness or death of an immediate family member).
USCIS regulations which became effective on July l, l999 permit AOS
applicants who hold valid, multiple entry H/L visas to travel on those visas
without the need to apply for advance parole authorization, provided that
they do not violate their status as H-1B or L-1 nonimmigrants (this
means that they must not have actually used an EAD card to accept
employment other than with their H-l/L-1 employer, or stopped working
for that employer), and provided they present upon entry to the U.S. the
original AOS I-485 Receipt Notice A similar rule applies to dependent
AOS applicants: they cannot have actually used an EAD card to accept
employment in order to continue to use their H-4/L-2 visas, together with
their original I-485 Receipt Notice, to travel. Note that other nonimmigrant
visa holders, e.g. TNs and O-1s are excluded from this exception and are
considered to abandon their adjustment applications if they use their
nonimmigrant visas to travel.
A5.
Portability. On October 17, 2000, the President signed into law the
American Competitiveness in the 21st Century Act (AC-21). This change
in immigration law creates another advantage to filing for adjustment of
status rather than consular processing. Under AC-21, Section 106(c), if
the AOS application has been pending for 180 days or more, the AOS
applicant is permitted to change jobs with the same employer, or to
switch to another entirely different employer as well as geographic
location, provided that s/he continues to be employed in the “same or
similar occupation.” This is a radical departure from existing rules and
allows great flexibility to adjustment applicants. USCIS does expect to be
provided with notification of any change of employment and a description
of how that change in employment is in compliance with AC21 in that it is
within the “same or similar occupation”.
A6.
Police certificates not required. If you choose consular processing, you
have to obtain police certificates, in countries where the Department of
State (DOS)e considers them available, from every locality of the country
of your nationality or latest residence abroad where you lived since
attaining the age of 16. If you opt for consular processing, you will also
need to obtain police certificates from all other countries where you have
lived for at least one year. AOS applicants instead provide their
fingerprints for FBI and related agency processing, as well as arrest or
conviction records if any.
A7.
Attorney can be present if Interview is scheduled. In the event of an
interview at a local USCIS office, an attorney from our office can be
present at the interview. In contrast, an attorney will not be present at the
immigrant visa interview if you choose consular processing.
A8.
If something goes wrong. If there is a problem with an adjustment
application, e.g. it is denied, we can appeal the decision or seek some
other administrative relief. If there is a refusal of an immigrant visa by a
Consul abroad, it is more difficult to obtain review. Also, if there is a
processing delay while additional information/documentation is sought
while an AOS application is pending, the applicant can continue to renew
your EAD and advance parole documents until the issues are resolved.
In contrast, if there is a problem at the Consulate, the applicant may be
stranded outside the United States until the issues are resolved.
A9.
Potential job flexibility for concurrent filings. In concurrent filing cases, if
an employee is laid off or employment is otherwise terminated, or if the
employee expects to be transferred to another, but similar, position (e.g.,
a promotion or change in job location) with the same employer,
concurrent filing might protect his/her ability to continue to immigrate with
the same I-140 petition and I-485 application on file with USCIS. To have
this occur, USCIS would have to agree that the portability provisions of
AC21 apply, even in the case of termination of employment, and that the
new position is in the "same or similar occupation" to the position
identified in the I-140. In this situation, the employee would need
employment authorization to work for the new employer (either an EAD or
a new H-1B petition by that employer).
A10.
Potentially faster processing for concurrent filings. In concurrent filing
cases, there may be shorter overall processing times. If the employee’s
long term goal is to assist family members to immigrate to the U.S.,
faster adjudication of the I-485 might speed up their applications. In
addition, filing the I-485 earlier will also speed up a qualifying family
member’s request for work authorization.
B.
Adjustment of Status - The Disadvantages
In 1998 - 2000, the USCIS allowed a huge backlog of AOS applications to
accumulate, resulting in lengthy processing times. However, within the
past few years, the USCIS Service Centers have begun to attack the
backlogs, and we are seeing approvals on applications filed
approximately 6-15 months ago. It is important to note that processing
times vary among the USCIS Service Centers. For current USCIS Service
Center processing times, please refer to processing times on our
website.
B1.
Unpredictable processing times. The primary disadvantage of AOS in the
past has been lengthy and unpredictable processing times. As indicated
above, USCIS has been giving a higher priority to processing AOS
applications and the processing times are improving. However, AOS
processing times continue to be longer than consular processing. The
possibility of concurrent filing may actually serve to increase USCIS
processing times. Longer processing times have the potential to
prejudice the applications of dependent children. Under the terms of the
Child Status Protection Act signed into law on August 6, 2002 however,
dependents may be considered under 21 for the purpose of eligibility to
apply for permanent residence. As a result, dependent children who were
under the age of 21 when the application was initially submitted, but who
become 21 years of age while the application is still pending, may or may
not lose their eligibility for permanent resident status depending on the
particular circumstance.
B2.
Concurrent Filings:
a.
Changes in the USCIS regulation. At this time, we are working with an
interim rule and without any interpretive or implementing memorandum
from the USCIS. If an employee proceeds with concurrent filing, there is
no guarantee that USCIS will not make changes to the interim rule as it
currently stands, or make interpretations that we have not anticipated.
b.
Risk of denial of the I-140. Filing the I-485 application enables the
employee and dependents to concurrently file applications for
Employment Authorization Document [EAD or I-765], and Advance Parole
travel authorization [AP or I-131]. Despite these independent bases for
work and travel authorization, we recommend that AOS applicants
maintain their underlying nonimmigrant status, (at least until the I-140 is
approved). This will mean additional fees for the employer if
nonimmigrant visa extensions are required, as well as possible
unnecessary usage of limited time in H/L status. For this reason, we
currently recommend that if the I-140 is supported by a strong labor
certification, the I-485 should be filed concurrently. However, we
recommend that an I-140 supported by a labor certification that has risks
such as a “substituted” employee, or an I-140 that is not supported by a
labor certification [e.g., an Outstanding Researcher petition, or
Extraordinary Ability petition] should be filed separately, and the I-485 not
be filed until the I-140 is approved. We believe that this recommendation
gives the employee the best chance of avoiding a situation where the I-
140 is denied months after a concurrent filing, leaving the employee and
the employer with an I-485 that has no legal basis. In that case, absent a
valid non-immigrant status, the employee would be out-of-status and
faced with the prospect of trying to reinstate status and employment
authorization.
c.
Possible inapplicability of AC21 "portability". It is unclear whether the
AC21 "portability" rules will apply to concurrent filings. Therefore, it is
unclear what action the USCIS would take if the I-140 was denied after
the I-485 application was pending for more than 180 days. If USCIS
decides that in such cases no portability is allowed, the AOS applicant
would be required to ask the employer to begin the immigration process
all over again, including a new non-immigrant visa petition (if eligible), a
new labor certification (if required), a new I-140, etc. Given the limits on
the amount of time one can remain in H or L status, the employee might
have to leave the U.S. and complete the process from abroad. There is
also the risk that a new employer would not be interested in supporting
the immigration process at all.
C.
Consular Processing - The Advantages
C1.
Shorter Processing Times. As noted above, the primary advantage of
consular processing has been shorter processing times compared to
AOS; although, as USCIS processing times get shorter, this particular
advantage becomes less and less important. If the USCIS properly and
timely forwards the approved I-l40 employment-based preference petition
to the National Visa Center of the U.S. Department of State, it is
conceivable that an immigrant visa appointment at an American
Consulate could be scheduled within no more than one year, depending
upon the particular Consulate's workload. If the applicant for an
immigrant visa is in possession of a valid nonimmigrant visa, the
individual may travel freely while waiting for the visa appointment to be
scheduled. Please note, however, that TN nonimmigrants must be more
cautious with international travel, since they must establish at the time of
each TN re-entry into the United States that they are working temporarily
in this country and that they have a residence abroad which they have no
intention of abandoning. This can be difficult if they have started the green
card process. Shorter processing times are particularly advantageous to
the applications of dependent children. Under the terms of the Child
Status Protection Act signed into law on August 6, 2002 however,
dependents may be considered under 21 for the purpose of eligibility to
apply for permanent residence. As a result, dependent children who were
under the age of 21 when the application was initially submitted, but who
become 21 years of age while the application is still pending, may or may
not lose their eligibility for permanent resident status depending on the
particular circumstance.
D.
Consular Processing – The Disadvantages
D1.
Inconvenience/cost. The primary disadvantages are the inconvenience
and expense of traveling to the American Consulate to appear for the
required interview. Unlike the USCIS, DOS does not waive the interview
requirement and it applies to all family members seeking immigrant
visas irrespective of age. The interview may well be scheduled at a time
that does not fit well with employment considerations and personal
schedules in the United States; rather, the interview is scheduled at a
time that is convenient to the Consulate, not the applicant. Appointment
dates are generally difficult to change and will result in additional delays
in the application process. While attorneys of record may routinely appear
at interviews for which their clients are scheduled by the USCIS, the
same does not hold true for DOS; attorneys are normally barred from
appearing with their clients in the interview room, and may be barred
from even entering the Consulate itself.
D2.
Documentary requirements. Documentary requirements are different and
generally more onerous for consular processing applicants. Most
nationals must obtain police clearances from all countries in which they
have resided for more than six months since reaching the age of 16 if the
U.S. Department of State considers such records to be available. Those
who have served in a foreign military organization must obtain a record of
their military service. For information regarding whether DOS considers
police, military, and other vital records available, please review the DOS
website at http://travel.state.gov/reciprocity/index.htm. The medical
examination will be scheduled with an approved physician or medical
clinic selected by the Consulate and may require the applicant and
accompanying family members to appear in the foreign country up to one
week in advance of the interview date; medical examinations conducted
by USCIS-approved physicians or clinics are not acceptable.
D3.
No Work Authorization for Dependent Family Members. The EAD
application available to AOS applicants is not available to applicants for
immigrant visas through the consulate. Therefore accompanying family
members in H-4, O-3 and TD status who have not been able to work in
the United States will continue to be unable to work until their immigrant
visas have been issued and they have been readmitted to the United
States as permanent residents. Since the EAD card can normally be
obtained within three months, and the immigrant visa interview may well
take a year to be scheduled, this can result in a considerable delay in
obtaining employment authorization.
D4.
No AC21 "portability". AC21 section 106 allows for portability for AOS
applicants if there are changes in the job offer so long as the new job is
for a “same or similar occupation” and so long as the AOS is pending for
at least 180 days. This relief only applies to adjustment applicants.
Therefore, someone who opts for CP rather than AOS is forgoing the
possibility of porting their application for permanent residence to another
employer or to another job if such an event occurs. If someone chooses
to process through CP, major changes which may occur in the nature of
the job duties or geographical location of employment before the CP
interview, or prior to admission as an immigrant following the CP
interview, can serve to render the approved labor certification and/or I-140
petition invalid. If the employer goes out of business, or is acquired by
another company which has no intention of continuing the permanent
resident process, there will be no basis for approval of the CP application
for a permanent resident visa. For CP cases, the offer of employment
which provided the initial basis of the filing of the CP application must
continue in effect until the applicant has been granted lawful permanent
resident status.
This memorandum is based on information and processing time
estimates provided to us by the USCIS. It is possible that USCIS may
change their priorities in the future in such a way that processing times
for adjustment of status may be reduced or lengthened.
As this memorandum hopefully makes clear, this is not a "one size fits
all" situation. Many factors have to be taken into account before an
applicant for permanent resident status makes the decision to either
apply for adjustment of status with the USCIS or for an immigrant visa at
a US consulate abroad, and neither option is going to be a perfect fit. All
applicants should consult with their immigration attorney before making
a final decision to pursue either option. By instructing the Service in item
4 of the Form I-140 to "send the petition to NVC" where concurrent filing is
not desired, we are providing applicants with the maximum amount of
flexibility and are leaving their options open to either adjust or go through
consular processing.
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Law Office of James S. Sarpong, LLC
"Counsel to Immigrants, their Families, and their Employers."
| LOJSS - Expertise, Integrity, Results. |
Phone: 303-991-5756 Email: info@sarponglaw.com
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The Law Office of James S.
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Sarpong, LLC is a Denver,
Colorado based US Immigration
Law Firm that has several office
locations throughout the Front
Range and the Denver Metro
Area, and provides immigration
law services to clients
throughout the United States
(U.S.) and the world, including
Arizona Phoenix, Mesa,
Tucson, California Anaheim,
Bakersfield, Fremont, Fresno,
Glendale, Huntington Beach,
Long Beach, Los Angeles,
Modesto, Oakland, Riverside,
San Bernardino, San Diego,
San Francisco, Santa Ana, San
Jose, Sacramento, Stockton,
Colorado Aurora, Colorado
Springs, Denver, District of
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Jacksonville, Miami, Orlando,
St. Petersburg, Tampa, Georgia
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Springfield, Worchester,
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The Law Office of James
S. Sarpong, LLC is a
Denver, Colorado based
US Immigration Law Firm
that has several office
locations throughout the
Front Range and the
Denver Metro Area, and
provides immigration law
services to clients
throughout the United
States (U.S.) and the
world, including Colorado
(CO), Wyoming (WY), Idaho
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County, and Jefferson
County.
S. Sarpong, LLC is a
Denver, Colorado based
US Immigration Law Firm
that has several office
locations throughout the
Front Range and the
Denver Metro Area, and
provides immigration law
services to clients
throughout the United
States (U.S.) and the
world, including Colorado
(CO), Wyoming (WY), Idaho
(ID), Denver, Arvada,
Aurora, Boulder, Colorado
Springs, Fort Collins,
Greeley, Highlands Ranch,
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Cheyenne, Jackson Hole,
Sheridan, Rock Springs,
Boise, Idaho Falls, Nampa,
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