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. If an alien opts for consular processing, he applies for an immigrant visa through the Department of State and must attend an interview at a U.S. Consulate in his country of residence abroad. If he opts for adjustment of status, on the other hand, he remains in the United States and files an application with USCIS Because these two methods bring the alien under the scrutiny of two separate agencies, each with its own procedures and set of governing rules, there are pros and cons to both options. The alien choosing between consular processing and adjustment of status must therefore take many strategic considerations into account before making what is often a difficult decision.

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.

If consulate 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 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 National Visa Center (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 approval of the I-140 petition. The immigrant visa fee must be paid by cashier’s check or a money order drawn on U.S. funds. It must be payable to the "Department of State”. The applicant is instructed to send the fees to the NVC’s lock box in Missouri.

Once the fees have been paid, the National Visa Centersends the applicant an instruction packet, or Packet 3, which assigns the applicant’s consulate case number and contains all of the forms the applicant must fill out, along with a list of all of the required documents for the application. The applicant or the attorney then submits all of the forms and supporting documentation to the NVC. NVC reviews the materials and if all documents and forms are present, NVC forwards the case along to the appropriate consulate for further processing.

Some consulates, such as the one in Montreal, Canada, require the applicant to submit all original documents (e.g. police clearance certificates, birth and marriage certificates, etc.) to the National Visa Center along with the forms. Other consulates, such as the one in Mumbai, India, require only that the applicant submit copies of all supporting documents. Those consulates require the applicant to bring the original documents along to the interview.

Working With the Consulate

Once the consulate receives the application from the National Visa Center, it performs an additional review of the application and then schedules an interview appointment. The appointment notice is generally mailed out approximately 6-8 weeks after the case has been transferred to the consulate abroad. The interview itself usually falls approximately 4 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, consulates are very unpredictable about rescheduling; the new date could be in a month or it could be several months later.

Required Medical Exam

The appointment notice comes with a packet of information about the medical examination that is required of all immigrant visa applicants, including dependent family members. The medical exam must be performed by panel physicians approved by the Department of State and located in the country where the interviewing consulate is located. At the time of the medical exam, the applicant must bring photographs of him or herself as well as the appointment notice and written proof of his or her vaccination history. If a vaccination record is 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

On the day of the interview, the applicant and his dependent family members must bring their passports, photographs, evidence of the principal alien’s employment, tax documentation, and any required original documents. The interviewing officer will ask questions about the principal alien’s employment, job duties, and prior immigration history. Each applicant must sign the oath on form DS-230 Part II in front of the consular officer to verify the authenticity of documents and the accuracy of statements made in the application.

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.

Medical Exam

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 Time

Processing times for both the I-140 and I-485 are extremely unpredictable. It is currently taking up to three years at the Texas Service Center, and 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 using his visa, or his adjustment of status application will be considered abandoned. 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 legally present in the U.S. as “Pending Permanent Residence Applicants” for the duration of the pending petition. This status does not confer on an alien any right to work or to travel outside the United States.

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.

EAD and AP are valid for a period of one year and cannot be extended. Aliens must apply for a new EAD and AP document on an annual basis until the Adjustment of Status application is approved. It is therefore important to file applications for new EAD and AP documents early so that they can be approved prior to the expiration of the previous year’s EAD and AP. If the old EAD expires before the new EAD is granted, the alien must not work during the gap in employment authorization. Similarly, if an alien’s Advance Parole is going to expire, he should make sure that he is not out of the country. If an alien is out of the country on an expired Advance Parole, he may not reenter the U.S. by having his newly approved Advance Parole document mailed to him overseas. His Adjustment of Status application will be considered abandoned.

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 on an annual basis.

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, his status is “Pending PR applicant,” or if Advance Parole is used, “Parolee.” 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 L-1 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. (The text of the Act is available online.)

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. It is unclear whether the portability provisions of AC21 apply to nonimmigrants whose status does not require that a Labor Certification be filed.

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-140is 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 when the regulations are published to implement AC21, they will not comport with USCIS interpretations. Any aliens who have relied on USCIS guidance will then be penalized.

The Advantage of Consular Processing: Quick Turn-Around

The biggest advantage of using consular processing is that it is much quicker than Adjustment of Status in most cases. Adjustment of status applications are currently taking up to three years to process. Granted, the I-140 is filed concurrently, which means that there is no additional time allocated for the I-140 processing. This processing time is subject to constant change, but for some time it has been clear that even though the I-140 petition and consular processing applications are filed consecutively rather than concurrently, consular processing is still quicker in most cases.

The alien choosing between consular processing and adjustment of status should consult the current I-140 and I-485 processing time reports for the service center at which his applications would be adjudicated, and compare them to the following time table for a typical consular processing application:

• I-140 Processing: estimate processing time based on processing time report _____

• Time from I-140 approval to applicant’s receipt of fee bill from National Visa Center (6-8 wks)

• Time from payment of fees to receipt of Packet 3 (4-6 wks)

• Time from submission of Packet 3 application materials to receipt of Appointment Notice (6-8 wks)

• Time from receipt of Appointment Notice to date of actual interview (4 wks)

Total: 5-6 months + I-140 Processing Time

Please note that all processing times are estimates and are subject to unforeseen delays and administrative changes. Processing times also vary from consulate to consulate. Plus in some cases aliens with criminal records or with names similar to people with criminal records will be required to obtain an additional set of fingerprints to be run through the FBI’s National Crime Identification Center (NCIC) before an immigrant visa interview can be scheduled. This will delay a case by a couple of months.

Disadvantages of Consular Processing

Cost

Consular processing can be very expensive. If the country at which the alien will apply for the immigrant visa is overseas, plane fare is expensive. Plus the alien must be able to leave work for approximately one week at a month’s notice, so that he can undergo the medical exam in his 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 permanent residence is issued. This means he must continue to file petitions to extend his stay, which requires paying filing fees.

Maintenance of Status

The applicant and his 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).

If an alien’s nonimmigrant status will not allow him to remain in the United States for the duration of the consular processing application, then he 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 written statement for the alien to present at the immigrant visa interview that it intends to employ the alien indefinitely 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.