Consular Processing vs. Adjustment of Status
Consular processing and adjustment of status are two means to the same end: obtaining permanent resident status in the United States. Consular processing requires the applicant to travel to his home country for an immigrant visa interview whereas adjustment of status permits all processing to occur within the United States. Typically adjustment of status is the favored option, both due to the lack of a travel requirement and because the applicant is afforded an appeal in the event of denial. However, in some cases consular processing may be a better option. This article discusses the pros and cons of each option.
Consular Processing: How it Works
An employment-based consular processing application begins when the prospective (or current) U.S. employer files an I-140 petition with USCIS requesting that when the petition is approved, it be forwarded to the National Visa Center. Upon approval of the I-140, USCIS sends an approval notice to the petitioning employer or to the attorney of record. USCIS then sends the petition itself, and notification of its approval, along to the National Visa Center (“NVC”).
If consular processing is not selected on the I-140 petition, and the applicant later decides to consular process, he or she must file an I-824 application, with fee, requesting that the previously approved I-140 petition be forwarded to the National Visa Center to begin processing. I-824 processing procedures vary depending on the consulate at which the applicant will apply for the immigrant visa.
Processing Through the National Visa Center
The U.S. Department of State runs the NVC, which is located in New Hampshire. Upon receipt of the I-140 petition, NVC sends a fee bill to the applicant or the applicant’s attorney. The fee bill is usually sent out approximately 6-8 weeks after the approval of the I-140 petition. Once the fees have been paid, the applicant completes and submits an online form, the DS-260. The applicant or the attorney also submits the applicant’s supporting documentation by mail or email, depending on the consulate the case is being processed through, to the NVC. NVC will take approximately 6-8 weeks to review the materials, and if all the necessary documents are present, NVC forwards the case along to the appropriate consulate for further processing.
Working With the Consulate
Once the consulate receives the application from NVC, it performs an additional review and then schedules an interview appointment. The appointment notice is generally sent approximately 2-4 weeks after the case has been transferred to the consulate abroad. The interview itself usually falls approximately 4-6 weeks after the date on which the applicant receives the appointment notice. The applicant must either attend the interview on the date and time specified by the consulate, or submit a request to reschedule the interview. If the interview must be rescheduled, the new date could be in a month or not until several months later, as consulates are very unpredictable about rescheduling.
Required Medical Exam
Prior to the interview all immigrant visa applicants, including dependent family members, are required to undergo a medical examination. The medical exam must be performed by a panel physician approved by the Department of State and located in the country where the interviewing consulate is located. The applicant must bring the interview appointment notice, his or her passport, any prior chest x-rays, passport-style photographs of him or herself, and copies of his or her vaccination and medical records to the exam.. If vaccination records are unavailable, the applicant may ask his or her physician to perform an antibody titers test to use as evidence of immunities.
Attending the Consulate Interview
The applicant and his or her dependent family members must bring their passports, photographs of themselves, evidence of the principal alien’s employment, and any required original documents to the interview. The interviewing officer will ask questions about the principal alien’s employment, job duties, and prior immigration history. Each applicant must sign his or her DS-260 by providing a biometric signature, i.e. their fingerprint, in order to certify that they have read and understood the questions on the form and that all statements that appear in their application are true and complete to the best of their knowledge.
After the Interview
If the applicant’s immigrant visa is approved, the applicant must leave his or her passport at the consulate to be stamped with the visa. The passport containing the visa will be sent to the applicant by courier several business days later. At this time the applicant must pay an additional fee for him or herself and each dependent family member. After paying this fee the applicant may enter the U.S. as a permanent resident.
Adjustment of Status: How it Works
An adjustment of status (I-485) application may be either filed concurrently with an I-140 petition, or it can be filed after the I-140 has been approved. If the I-140 is filed first and the applicant later decides he would like to file an adjustment of status application, the application can be added to a currently pending I-140 petition to be adjudicated at the same time.
All adjustment of status applicants are required to undergo a medical exam in the U.S. The exam must be performed by a USCIS- approved civil surgeon near the applicants’ residence. The applicant mails the sealed results of the medical exam to USCIS along with the Adjustment of Status application.
Processing times for both the I-140 and I-485 are extremely unpredictable. It is currently taking approximately 1 year for USCIS to approve a concurrently filed I-140 and I-485, but that is subject to change.
Employment Authorization and Advance Parole
Once an alien has filed an I-485 application, his or her underlying nonimmigrant status remains valid until it expires. While it is valid the alien may continue to work using the nonimmigrant status. During this time the applicant may not leave the United States, or his adjustment of status application will be considered abandoned, with one major exception: those in H or L status may travel abroad while the I-485 is pending without abandoning the application. Also, unless the alien is in H-1B or L-1 status, his nonimmigrant status cannot be extended once the I-485 has been filed. After the nonimmigrant status expires, the principal alien and his family members are considered not to be unlawfully present in the U.S. for the duration of the pending application. Having an adjustment of status application pending, however, does not confer actual status on an individual nor does it confer work or travel authorization.
In order to work or travel while the I-485 is pending, the alien must obtain an Employment Authorization Document (I-765) and Advance Parole travel authorization or AP (I-131). These applications can be filed concurrently with the I-485 application. Simply filing an application for EAD and AP confers no right on the alien to travel or accept employment. Aliens must actually have the approved documents in their possession in order to travel or work on that basis. If one applies for EAD and AP concurrently, USCIS issues a single card which confers both work and travel authorization.
Dual Intent: Maintaining H-1B or L-1 Status While An Adjustment of Status Application is Pending
Aliens in H-1B or L-1 nonimmigrant status are allowed to have “dual intent,” meaning that they may maintain valid nonimmigrant status even while their adjustment of status applications are pending. Subsequent extensions of H or L status will not be denied on the basis of the pending adjustment of status application.
We advise clients who are in H or L status to maintain their nonimmigrant status as long as possible while their adjustment applications are pending. The advantage to maintaining nonimmigrant status is that if for some reason the adjustment application is denied, the alien will have his nonimmigrant status to fall back on and will not have to immediately leave the United States. In addition, he may continue to travel on his H or L visa and does not have to apply for EAD and AP renewals.
If an H-1B or L-1 principal alien maintains his nonimmigrant status, his family members may choose either to maintain dependent H-4 or L-2 status or they may opt to apply for EAD and AP instead. Simply applying for and possessing an EAD or AP document does not nullify the holder’s nonimmigrant status; it is only by using an EAD or AP that an alien forfeits his nonimmigrant status. The first time an alien uses EAD or AP, he is no longer in H-4 or L-2 status but is authorized to remain in the US as a pending adjustment applicant. If the principal alien maintains his nonimmigrant status, his family members may still opt to use the EAD and/or AP so that they can work while their Adjustment of Status applications are pending.
The L-1 or H-1B holder himself may wish to obtain EAD and AP and not use them. He then has them on hand for use in case he needs them. For example, if an H-1B beneficiary chooses to port to a new employer after the I-485 has been pending for 180 days, he may need to use his EAD to go work for the new employer.
Portability Provisions: Changing Employers Once the I-485 Has Been Filed
Because the I-485 is based on the alien’s intention to continue working for his employer indefinitely after receiving permanent status, even if the principal applicant receives his EAD, he has traditionally been required to continue working for the employer that filed the underlying I- 140 petition. However, the American Competitiveness in the 21st Century Act (AC21) dramatically altered this requirement. AC21 allows Adjustment of Status applicants to use an EAD to change employers once their Adjustment applications have been filed and remained unadjudicated for 180 days or more. The ability to change employers is referred to as “portability.” Portability provisions only permit adjustment applicants to work in a new position that is the “same or similar” to the position described in the applicant’s approved Labor Certification.
When concurrently filed I-140 & I-485 applications both remain unadjudicated after 180 days, an applicant is arguably eligible to change employers under AC21. However, at the time the I-140 is adjudicated, the petitioning employer must certify his intent to provide the alien beneficiary with a job after his permanent residence is granted. If the alien has left employment with the petitioner and has no intent to return, the employer would not be able to certify its intent to continue employing the alien, and the I-140 would have to be denied. If the I-140 petition is denied for this or any other reason, the I-485 will also have to be denied.
It is important to keep in mind that no regulations have been passed to implement the portability provisions of AC21. USCIS has provided its interpretation of AC21's provisions in various policy memoranda. However, it is possible that if and when regulations are ever published to implement AC21, they will not comport with USCIS interpretations. Any aliens who have relied on USCIS guidance will then be penalized.
Disadvantages of Consular Processing
Consular processing can be very expensive. If the country in which the alien will apply for the immigrant visa is overseas, the cost of plane fare will be a factor. The alien must also be able to leave work for approximately one week at a month’s notice so that he or she can undergo the medical exam in his or her home country, wait for the exam results, and attend the interview there.
In addition, the applicant must maintain his or her status in the U.S. until the immigrant visa is issued. This means he or she must continue to file petitions to extend his or her stay, which requires paying filing fees.
Maintenance of Status
The applicant and his or her family members must maintain nonimmigrant status for the duration of the pending consular processing applications. Most nonimmigrant statuses have a limit on the duration of status. For example, L-1Bs may only maintain status for 5 years, L-1As for 7 years, and H-1Bs for 6 years. (One exception is that an H-1B beneficiary who has completed his sixth year may extend H-1B status indefinitely in annual increments if a Labor Certification or I-140 petition that was filed on his behalf has been pending for a year or more; or in 3 year increments if his I-140 has been approved and his priority date is not current).
If an alien’s nonimmigrant status will not allow him or her to remain in the United States for the duration of the consular processing application, then he or she will have to leave the country and not re-enter until after the consulate issues him an immigrant visa. Aliens for whom maintenance of status is an issue may wish to adjust status so that they continue to reside and work in the U.S. using EAD while their permanent residence applications are adjudicated.
Applicants May Not Obtain EAD
All family members of a working age may obtain an Employment Authorization Document (EAD) while her adjustment of status application is pending. No such option is available to dependents of consular processing applicants. (Note that L-2 and E-2 dependent spouses may obtain employment authorization based on their nonimmigrant status). The family members of consular processing applicants may therefore experience significant delays in gaining eligibility to work in the U.S.
The principal applicant in a consular processing application is also ineligible for EAD, meaning that if she files a new H-1B petition and uses the portability provisions of AC21 to work for a new employer, she will lose eligibility to consular process based on the I-140 filed by the previous employer.
In consular processing cases, the employer that filed the I-140 petition must provide a letter for the alien to present at the immigrant visa interview stating that it intends to employ the alien after the alien obtains permanent residence. If, at the time of the interview, that same employer does not intend to continue employing the alien, the immigrant visa cannot be issued.
Original Documents Required
Consular processing applicants are required to present original documents at the time of the consulate interview. Documents include birth certificates, marriage certificates, military records, divorce decrees, etc. For an adjustment of status application, on the other hand, the alien is only required to submit copies of supporting documents, unless original documents are requested, which is rare.
No Administrative Remedies
If a consular officer denies a case, there is virtually no recourse for the applicant. A senior consular officer may review the application, but if he affirms the denial, there is no way to appeal the decision. The applicant must start the entire process over again, with the filing of a new I-140 petition.
Advantages of Adjustment of Status
All adjustment of status applicants are permitted to obtain employment authorization, which allows dependent family members to work during the pendancy of the application and allows the principal applicant to use portability to work for a new employer once 180 days have passed and the I-140 has been approved.
Adjustment of status is convenient in the sense that applicants may simply remain in the U.S. while the application is adjudicated, and need not travel abroad for an interview. In fact, for most employment-based petitions, no interview is required unless the applicant has previously been out of status; USCIS suspects fraud; portability is invoked; or USCIS randomly selects an applicant for an interview. If an interview is scheduled, attorneys are permitted to attend the interview with the applicant whereas no attorney representation is allowed at consulates.
The option to remain in the U.S. while the application is being processed is particularly important to aliens who have been unlawfully present in the United States for over 180 days in the past. Aliens who have been unlawfully present at some point for over 180 but less than 365 days are subject to a three year bar from readmission to the United States. Aliens who have been unlawfully present at some point for over 365 days are subject to a ten year bar from readmission to the United States.
The three and ten year bars are triggered by the alien’s departure from the United States. Therefore aliens who would subject themselves to the bar by leaving the U.S. are well advised to adjust status so that they do not have to leave the U.S. until after they have received permanent resident status. Once lawfully admitted to permanent resident status, aliens are no longer subject to the bars.
Finally, adjustment of status is convenient because applicants are not required to submit original documents in support of the application unless specifically requested to do so.
Administrative Remedies are Available
If USCIS denies an adjustment of status application, the alien may be placed in removal proceedings and the application could be renewed before an immigration judge. Alternatively, if the alien is maintaining H-1B status after the denial of the adjustment of status, then he cannot be placed into removal proceedings. He could appeal the denial of his adjustment of status application in federal district court.
Adjustment of Status applicants have the option of either filing the I-140 and I-485 concurrently or filing them consecutively. The concurrent filing option is the best choice in most cases, as it shortens the overall time for adjudication. However, concurrent filing is not a good idea when it is questionable whether the I-140 will be approved because if the I-140 is denied, the I-485 will be automatically denied. Because it is expensive to file an I- 485 application (particularly if applications are being filed for an entire family), it is not worth spending the money unless the applicant is relatively certain that the I-140 will be approved.
Disadvantage of Adjustment of Status: Lack of Portability Regulations
AC21 was passed over two years ago and there are still no regulations in place to interpret the law. Therefore anyone using portability provisions when the regulations are published may discover that he has interpreted the law differently than the regulation-drafters. Even USCIS memoranda interpreting the law could be wrong. Anyone violating the as-yet unpublished AC21 regulations could be penalized upon their publication.