AOS vs. CP in Green Card Processing
Posted Jan 18, 2002

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 post-9/11.

In the ultimate analysis, although the INS takes a longer time to process the AOS application, under existing law it is generally safer to opt for AOS rather than CP. It is a question of whether to take a shorter route, fraught with problems and opt for consular processing or to take the longer, safer road with adjustment of status. The ultimate decision is always the applicant's, but the decision should be made with an understanding of the new terrain through which we now maneuver. The need for caution cannot be over emphasized.