The Legal Permanent Resident (“LPR”) or green card application process involves at least two steps: 1) the immigrant visa classification petition and 2) screening for admission as a permanent resident. Step two can be pursued in two alternate ways – one from inside the U.S. and one from outside the U.S.
When preparing to file immigrant visa classification petitions on Forms I-140, I-130, I-526, or I-360, the individual beneficiary, his/her spouse, and his/her children under 21 need to decide which of these processes to pursue: A) application to United States Citizenship and Immigration Services (“USCIS”) via a process called “Adjustment of Status” (“AOS”) or B) application to the U.S. Embassy in the individual’s home country, called “consular processing” (“CP”). To determine which route to take, a variety of factors should be considered.
Typically, an individual legally present in the U.S. without prior immigration violations files an adjustment of status application. Individuals residing outside the U.S., on the other hand, usually go through consular processing. It is best to indicate your election of AOS or CP on the I-140/I-130/I-526/I-360 petition. Asking USCIS after approval of the I-140/I-130/I-526/I-360 to alert the appropriate U.S. Embassy that an applicant will go through consular processing at that location can cause an additional year’s delay, as this requires another application (Form I-824) to be filed. Therefore, it is best to select CP if you are unsure.
One significant consideration is the time each process takes. Time frames for adjustment of status or consular processing are important to employment-based immigrant visa applicants because the sponsored employment must usually continue until completion of the process. Note also that consular processing may be started only after the I-526 or I-140 is approved. Adjustment of status, by contrast, can be started concurrently with most I-140 filings, though not concurrently with the I-526. The introduction of premium processing for most I-140s, where USCIS will take action on a filing within 15 calendar days, means that the consular process can now start sooner for I-140 cases filed with premium processing. Unfortunately, premium processing is not available for I-526 petitions.
Again, in the EB-5 context, neither concurrent AOS filing nor premium processing are an option. The I-526 must be approved first before you can start either the adjustment or consular processes. However, as noted above, it is important to consider the pros and cons of each to determine which process you will take in the future at the time your I-526 is submitted to USCIS.
The pros and cons of adjusting status in the U.S. versus consular processing abroad are outlined below.
A) Adjustment of Status through USCIS
- The applicant must reside in the U.S. The applicant’s state of residence determines where the adjustment of status application is submitted.
- The AOS application is submitted to USCIS.
- If USCIS’s decision is unfavorable to the applicant, certain procedural rights of review/appeal are available.
- The priority date must be current in order to file the AOS application.
- The three-year H-1B service commitment for shortage-area J-waivered physicians must be completed before filing the AOS application.
- While an applicant’s I-485 is pending with USCIS, the applicant can get a work permit and travel permission, thereby avoiding having to make and attend a consular appointment to renew a temporary visa, avoiding having to obtain I-129 extensions, and avoiding any related employer obligations.
- Approximate time for I-485 approval from time of filing: eight to twelve months.
- Temporary visa holders in the U.S. under visas other than H or L are required to remain in the U.S. for approximately 90 days after filing, or until advance parole is approved.
- After receipt of advance parole/employment authorization document, temporary visa status may lapse.
- Approximate time for work permit (I-765) approval: 90 days. The work permit is valid for one year and is renewable for as long as the I-485 is pending with USCIS.
- Approximate time for travel permission (I-131, advance parole): 60 days. Travel permission is valid for one year and renewable for as long as the I-485 is pending with USCIS.
- Applicants are required to undergo FBI fingerprint checks and inter-agency name clearance.
- Police checks are only for U.S. crimes.
- As of March 2017, all AOS applicants in a family, employment or diversity lottery category will be interviewed at a local USCIS office.
- Spouses and children of principal visa petition beneficiaries can simultaneously apply for adjustment of status if they are in the U.S.
- Spouses and children over 14 who submit I-485 applications can also get a work permit and travel permission.
- The I.N.A. 204(j) portability provision permits change of employment within the same “occupational classification” without forfeiture of AOS process as long as the I-140 is approved and 180 days have passed since the I-485 filing.
Summary: greater procedural rights, more predictability, avoids consular clearances, currently less time to achieve LPR (or conditional legal permanent resident) status if concurrent filing is available, work permit and travel permission is a benefit to spouses and applicants if H or L visas are inconvenient or unavailable.
B) AOS Red Flags
An applicant may wish to avoid AOS under the following circumstances:
- Unpredictable international travel needed, e.g., ailing family members abroad.
- Failure to maintain nonimmigrant visa status prior to filing AOS.
- Less than 90 days have passed since the applicant’s most recent entry to U.S. on a B, F, J or E visa
C) Consular Processing
- The U.S. Department of State is the agency involved. Applications, fees, and documents are collected by the National Visa Center in the United States and then sent to a U.S. Embassy or Consulate in the applicant’s home country for processing and adjudication.
- Application for LPR status must be processed in the applicant’s country of birth or foreign country of legal residence.
- Appeal/process rights are limited: consular findings of fact cannot be appealed.
- If the applicant is in the U.S., s/he MUST maintain nonimmigrant status (temporary visa) to stay and work in the U.S. while waiting for consular interview.
- An interim work permit or travel permission is not available while the applicant awaits the consular interview.
- The applicant must return to his/her home country for the medical exam and interview at a U.S. Embassy or Consulate.
- The interview is scheduled three to four weeks in advance. Thus, if the applicant and/or family are in the U.S., they may be required to travel immediately.
- The minimum stay in the home country is five to seven days for the medical exam and interview.
- Approximate time to receive LPR status from approval of I-140: three to nine months.
- Approximate time to receive conditional legal permanent resident status from approval of I-526: depends on the quota delay, which can range from two years to much longer.
- An applicant must obtain police certificates from every country where s/he has lived for 12 months or more after age 16. This can be a burdensome and time-consuming task for applicants who have lived in various countries as adults.
- Security check clearance is required by the U.S. Department of State. The security check process is becoming increasingly arduous, especially for nationals of countries with suspected high terrorist activity.
- An applicant can start the consular process (e.g., submitting application, paying fees, etc.) prior to the priority date being current, but cannot be interviewed until the priority date is current.
- J-waivered shortage-area physicians can initiate consular processing prior to completion of the three-year H-1B service obligation.
- If the immigrant visa application is denied, the applicant risks being inadmissible to the U.S., unless parole or a nonimmigrant visa can be obtained.
Summary: limited procedural rights, possibly longer processing time than adjustment of status, burdensome documents needed (police clearances), no work permit or travel permission benefits while case processing is ongoing, may be faster than AOS if concurrent AOS is not available.
D) Consular Processing Red Flags
The following are considerations for when an individual may wish to avoid consular processing:
- Immigration history of having changed status from B-2 to F-1 or H.
- Three- and ten-year bars: if an individual has been unlawfully present in the U.S. for over 180 days, s/he may be subject to the three- or ten-year bar. If the three- or ten-year bar applies, the applicant may be unable to return to the U.S. for three or ten years. If unsure, consult one of our attorneys to assess the case.
- Multinational executives, if the prior foreign employer and U.S. employer no longer have the same qualifying affiliation or have ceased doing business.
- Employment-based labor certification cases where the beneficiary has insufficient English language abilities for the job. Recent targets include nationals from China, Turkey, Gulf countries, and Iran.
- Employment-based labor certification cases: the beneficiary must be prepared to discuss job and qualifications. Expect “pop quizzes” about the job, especially for computer industry-based jobs.
- Applicants relying on “green card portability” at I.N.A. 204(j) who change employers prior to completion of LPR process.
The availability of concurrent filing of the I-140 petition and I-485 application is certainly a major advantage of AOS over consular processing. Furthermore, post 9/11, more rigorous security checks and increasing numbers of interviews for nonimmigrant visa applications have resulted in serious delays at most consular posts. Being stuck outside the U.S. during a protracted clearance or to resolve a fact issue is less convenient than continuing employment in the U.S. while such an issue is resolved, as would be the case if the applicant had opted for AOS. Clients seeking consular services are advised to check the current procedures of the applicable consulate before departing the United States.
Many U.S. embassies and consulates have web sites. A list of U.S. embassies and consulates worldwide may be found at http://usembassy.state.gov/. Country-specific visa processing information is accessible by going to the specific consulate listed. Details on how to obtain police reports, prison records, birth documents, etc. in a particular country can be accessed on the U.S. Department of State webpage.