Revisiting the Debate: Adjustment of Status vs. Consular Processing

In each permanent resident (“green card”) case, one must decide whether to request consular processing (CP) an adjustment of status (AOS). There are two possibilities for this last step in the green card precess: adjustment of status within the United States or processing for an immigrant visa at the consulate and then entering the U.S. It is generally necessary to make a choice between the two procedures. This choice often involves various strategy considerations.

The issues related to this decision have been discussed for years within the immigration community. However, over time some of the considerations have changed. These changes, which have occurred over the past decade, generally tend to make adjustment of status more attractive and eliminate some of the benefits that were historically associated with CP.

Safest Not to Exercise CP/AOS Option in Some Cases

Due to procedural and legal restrictions, some people are not eligible for both AOS and CP. That is, they may not have the option to choose between the two. One should discuss the matter with a qualified, experienced immigration attorney to make this determination. An instance in which there would be no choice is in the case of an individual who is processing a green card case from abroad. One who is living abroad and will not enter the U.S. prior to the completion of her/his green card case must use CP to obtain the immigrant visa from the U.S. consulate abroad. Some individuals who have not maintained status in the U.S. may only be eligible for CP. On the other hand, some who have not maintained status may be eligible for AOS under special provisions, but they would face bars to reentry if they departed the U.S. in an attempt to consular process. Therefore, the first step to be figured out with the help of an attorney is whether one has both options.

Choice of AOS/CP Arises in the I-140 Petition

With the current, widespread retrogression of priority dates, many employment-based applicants must wait to file their I-485s or proceed to consular processing. With retrogression, once the labor certification is approved, the applicant can only file the I-140, rather than being able to concurrently file the I-140 and I-485 concurrently. This is particularly true of those individuals who are in EB3 or EB2 applicants from India and China. It should be noted, also, that CP in no way avoids the retrogression problem. In order for an immigrant visa to be issued at the consulate there must be an immigrant visa number available.

In an employment-based case the question of whether to select CP or AOS arises at the I-140 employer petition stage, even when concurrent filing is not available. The employer must indicate on the I-140 form itself which way the case will proceed. As explained below, it potentially is possible to change one’s mind later. It is much easier to switch if CP is selected on the I-140 than if AOS is selected, however.

It is our intent to help MurthyDotCom and MurthyBulletin readers decide which is the better option for them, when they reach this stage. What follows is general guidance only, and applicants are encouraged to speak with their immigration attorneys for case-specific advice as to which is the best course of action in their unique circumstances.

Advantages of Adjustment of Status

EAD and AP

For many years, in the majority of employment-based green card cases filed by our firm, applicants have chosen AOS rather than CP. The primary reason for this is that AOS provides an applicant with several benefits and safeguards that do not exist with consular processing. For example, when one files the I-485 s/he is also eligible to file an application for an employment authorization document (EAD) and an application for an advance parole (AP) travel document. This means that it is not absolutely necessary for the applicant to continue maintaining a nonimmigrant status, such as H or L. It is important to note, however, that the safest course of action is for the I-485 applicant to continue maintaining a nonimmigrant status such as H1B when possible. For a number of reasons beyond the scope of this article, we at the Murthy Law Firm most often advise that a client maintain H1B or L-1 status, even though an I-485 is pending and s/he could work on the EAD. In some circumstances, however, either by choice or otherwise, foreign nationals rely solely upon the I-485 and EAD.

An applicant who selects CP, on the other hand, is not eligible to apply for the EAD and AP and must continue maintaining a status such as H1B, or L1A or L1B, etc, otherwise s/he will fall out of status. This means that, in the event that the job is lost, one potentially could be in a much worse situation than that of a person with an I-485 pending.

AC21 Portability Benefits

Another very important and valuable safeguard that potentially is available to an I-485 applicant is that, under certain circumstances, s/he may be able to continue with the green card case even without the job offer from the sponsoring employer. The American Competitiveness in the 21st Century Act (AC21) generally allows an I-485 applicant to change employment to a job that is in the “same or similar” occupational classification, provided the I-485 has been pending for at least 180 days. Therefore, should an I-485 applicant’s sponsoring employer go out of business after the I-485 has been pending for 180 days, for example, the applicant may be able to continue with the green card case. The AC21 law also has advantages in terms of allowing one to change jobs, either with the original sponsoring employer or with a new employer. Given the length of time green card cases often take, particularly when retrogression causes visa cutoff dates to move backwards and forwards, availability of AC21 for job flexibility can often be quite advantageous. This is one of the main reasons that people chose AOS, rather than CP.

In order to take advantage of AC21 portability, an applicant must have filed an I-485. Therefore, AC21 portability is not available to one who selects CP on the I-140 and never files the I-485. In the scenario described above, if a CP applicant’s sponsoring employer were to go out of business, the green card case would end at that time. The case is based upon a specific job offer from a specific employer. Without AC21, once that job offer ends, the case ends.

The same problem exists if a change of job is desired, either with the same employer or a new employer. Since the case is based upon a specific job offer, this limits the employer’s flexibility to promote the individual within the company, as well as limiting the individual’s ability to accept alternative job offers. Selecting CP essentially places the individual back into the situation that existed before the AC21 law. Prior to the passage of AC21, many saw their cases fall apart after years of waiting, because companies went out of business or employers terminated employment offers before the green cards were approved.

Advantages of Consular Processing

Potentially Faster; but Not Necessarily

Years ago, many applicants were selecting CP because, in most cases, it was faster than AOS. Before the advent of concurrent filing, many people chose CP in an effort to obtain their immigrant visas while the visa numbers were available, as they had no way of knowing how long visa numbers would remain available. As of this writing, the timing advantage of CP has disappeared. Moreover, as mentioned above, CP does not provide a short-cut to avoid retrogression.

Retrogression aside, CP is generally no faster than AOS. The USCIS has greatly improved processing times in AOS cases in the past few years. Processing times are typically close to the USCIS goal of six months. Of course, case processing depends upon availability of visa numbers, which is a matter that is out of the USCIS’s control. Any individual case may take much longer, depending upon a variety of factors, or may be processed faster. There are in-person interviews required in some cases, which can cause further delays because of scheduling limitations. USCIS processing times may fluctuate dramatically from time to time.

A very rough estimate of the processing time for a CP case, without retrogression, is approximately six to twelve months. Of course, this is measured from the time when the I-140 is approved. With AOS, if the visa number is available and the I-485 can be filed concurrently, it may not be necessary to wait for the I-140 approval to start the I-485 processing. Thus consular processing timeframes can vary greatly depending upon factors such as processing times at the National Visa Center and interview backlogs at the relevant consulate.

While it is impossible to pinpoint precise processing times for AOS and CP cases, using these very rough estimates it is evident that, in most cases, there is not much difference. CP may prove faster in some instances, and AOS may prove faster in others. In most situations, therefore, the uncertain hope of possibly faster processing times does not justify giving up the safeguards of AOS in favor of CP.

Applicant May Change from CP to AOS; or Vice Versa

It is important to note that selecting AOS or CP on the I-140 form does not lock an applicant to that process. One who selects CP may later decide to file the I-485 and may do so without filing any extra form, other than the I-485 itself. These, generally, go fairly smoothly and there have been times when changes in the law have resulted in large numbers of people changing from consular processing to AOS. There is some risk of problems in these cases, particularly in certain very old cases, but these are very limited.

The process of changing from AOS to CP is more difficult, but it is possible, if needed. In such cases, it is necessary to file the application for action on approved petition (I-824), after the I-140 is approved. This notifies the USCIS to transfer the file to the consulate. I-824 processing times vary considerably. Historically there have been periods when I-824s have taken a very long time for approval. It is sometimes possible to process a CP case prior to the I-824 approval (as an attorney-certified I-140 case), but this is not available for all cases.

Conclusion

We at the Murthy Law Firm hope that this analysis is helpful in the decision between AOS and CP on the I-140 form. Readers in need of case-specific advice, or with further questions, are encouraged to consult with an experienced immigration attorney.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.