Van Der Hout LLP

Life After The I-140: Choosing Adjustment Of Status Or Consular Processing

When Form I-l40, the employment-based immigrant visa petition, is submitted to the CIS Service Center having jurisdiction over the intended area of employment, the petitioner is asked to indicate whether the beneficiary will opt for “consular processing” at an American Consulate overseas where s/he may apply for an immigrant visa, or will apply for Adjustment of Status (AOS) to permanent residence in the USA by filing form I-485 with a CIS Service Center having jurisdiction over the applicant’s place of residence. If AOS is selected, we have an option for “concurrent filing” of the I-140 and I-485. This means the I-140 and the I-485 may be filed at the same time, or the I-140 may be filed first; the I-485 may be filed while the I-140 is still pending. If the beneficiary does not indicate a choice to Adjust Status in the United States, the CIS will send notice of the approval to the National Visa Center (NVC) which will forward the petition to a consular post abroad for processing of the Immigrant Visa.

  • Adjustment of Status – The Advantages
  • Convenience: The application is filed by mail at the Service Center; there is no need to travel or incur the inconvenience and expense of an interview abroad.
  • Waiver of interview: A small percentage of all employment-based applications for Adjustment of Status are sent to the local CIS District Offices for interview. In most cases, the interview requirement is waived, and the CIS simply adjudicates the application based upon the forms and supporting documentation.
  • Employment Authorization: This is available for the principal, as well as dependent family members. This means that H-4, O-3, or TD dependent family members who are prohibited from engaging in employment may apply for employment authorization as AOS applicants. AOS applicants may apply for an Employment Authorization Document (EAD) concurrently or after filing the AOS application. An interim EAD is available at the local District Office if processing times exceed 90 days. EADs are usually valid for a period of one year. And may be extended in one year increments until the AOS is adjudicated. H/L/O visa holders have the option of filing for extension of nonimmigrant work authorization instead of, or in addition to, filing for an EAD. The advantages to doing so include longer work authorization validity periods, and maintenance of nonimmigrant status in the unlikely event the AOS is denied. Filing of an EAD concurrently with the AOS application is encouraged, given lengthy processing times. EADs provide an essentially unrestricted right to engage in employment or to be self-employed.
  • Permission to travel (Advance Parole): All applicants for AOS may apply to the CIS Service Center for permission to depart the United States temporarily after the adjustment application has been accepted for processing. (NOTE: Applicants who have been unlawfully present for 180 days or longer should NOT apply for Advance Parole.) An AOS applicant cannot depart the United States and re-enter without advance parole or a valid H or L visa. An applicant who does depart without permission will be deemed to have abandoned his/her adjustment application. However, the local CIS District Offices do retain jurisdiction to adjudicate advance parole applications in emergency situations (i.e., sudden serious illness or death of an immediate family member). CIS regulations which became effective on July l, l999 permit AOS applicants who hold valid, multiple entry H or L visas to travel on those visas without the need to apply for advance parole authorization, provided that s/he has not violated his/her H or L nonimmigrant status. The applicant may be asked to present the original AOS I-485 Receipt Notice upon re-entry to the USA with an H or L visa. A dependent AOS applicants must not have actually used an EAD card to accept employment. Other nonimmigrants, e.g. TNs , J’s and O’s are excluded from this exception and will abandon the adjustment applications upon departure without Advance Parole.
  • Portability: If an AOS application has been pending for 180 days or more, the AOS applicant is permitted to move to a new position with the same employer, the same position at another location, or to a position with a different employer provided that s/he continues to be employed in the “same or similar occupation.” This rule, passed by Congress in October 2000, allows great flexibility for adjustment applicants. Although regulations interpreting the rule have not been promulgated, CIS has indicated it does expect to be provided with notification of any change of employment along with a clear job description evidencing that the employment is within the “same or similar occupation”.
  • Police certificates not required: An applicant for consular processing must provide police certificates, if available, from every country in which the applicant has lived for six months or more since attaining the age of 16. AOS applicants must be fingerprinted for FBI and related agency processing, and must provide extensive records of any arrest or conviction, if any, but do not need to provide police certificates from abroad.
  • An attorney may be present if an interview is scheduled. In the event of an interview at a local CIS office, an attorney may accompany the applicant to the interview. In contrast, an attorney will usually not be present at the immigrant visa interview abroad.
  • What if an application is denied? If a problem arises with an adjustment application, e.g. it is denied, the applicant may appeal the decision or may seek other relief from deportation. If an immigrant visa is refused abroad, it is more difficult to obtain review. If processing delays relating to an AOS application occur, the applicant may continue to renew the EAD and advance parole documents until all issues are resolved and the application is adjudicated. In contrast, if there are processing delays or delays in obtaining required documentation at a foreign post, an applicant may be stranded outside the United States until the issues are resolved.
  • Adjustment of Status – The Disadvantages
  • Unpredictable processing times. The primary disadvantage of AOS in the past has been lengthy and unpredictable processing times. Longer processing times may prejudice the ability to accept promotions, new positions in different occupations, or may cause dependent children to “age out.” Under the terms of the Child Status Protection Act, eligibility for permanent residence for children may continue after age 21 depending upon the particular facts and circumstances.
  • Changes to or new CIS regulations may be promulgated: There is no guarantee that Congress or the CIS will not change rules or regulations as they apply to employment based immigration during the pendency of an application for either AOS or an immigrant visa abroad.
  • Risk of denial of the I-140: Filing the I-485 application enables the employee and dependents to concurrently file applications for Employment Authorization Document [EAD or I-765], and Advance Parole travel authorization [AP or I-131]. Despite these independent bases for work and travel authorization, it is recommended that AOS applicants maintain their underlying nonimmigrant status at least until the I-140 is approved. If an I-140 were to be denied for any reason, the I-485 would presumably also be denied unless a substitution is made immediately. The employee would be required to depart the USA and re-enter in valid non-immigrant status to reinstate legal status and employment authorization.
  • Consular Processing – The Advantage

Shorter Processing Times. As noted above, the primary advantage of consular processing has been shorter processing times compared to AOS. If the INS properly and timely forwards the approved I-l40 employment-based preference petition to the National Visa Center of the U.S. Department of State, it is conceivable that an immigrant visa appointment at an American Consulate could be scheduled within fifteen to eighteen months. If the applicant for an immigrant visa is in possession of a valid H or L nonimmigrant visa, the individual may travel freely while waiting for the visa appointment to be scheduled. Please note, however, that TN, O-1, or J-1 nonimmigrants should not engage in international travel after an I-140 is filed, since temporary non-immigrant intent is required at the time of each entry into the United States; those visa holders must have a residence abroad which they have no intention of abandoning. This can be difficult to establish once an I-140 has been filed.

  • Consular Processing – The Disadvantages
  • Inconvenience/cost. The primary disadvantage is the inconvenience and expense of traveling to the American Consulate to appear for the required interview. All applicants for an immigrant visa must be interviewed at a foreign post. The interview may well be scheduled at an inconvenient time; visa appointment dates may be changed, but rescheduling does not always result in a more convenient date and will result in additional delays in the application process. Attorneys are normally barred from appearing with their clients in the interview room, and may be barred from even entering the Consulate itself.
  • Documentary requirements. Documentary requirements may be more onerous for consular processing applicants. Most nationals must obtain police clearances from all countries in which they have resided for more than six months since reaching the age of 16 if the U.S. Department of State considers such records to be available. Those who have served in a foreign military organization must obtain a record of their military service. For information regarding whether DOS considers police, military, and other vital records available, please review the DOS website at The medical examination will be scheduled with an approved physician or medical clinic selected by the Consulate and may require the applicant and accompanying family members to appear in the foreign country up to one week in advance of the interview date; medical examinations conducted by INS-approved physicians or clinics are not acceptable.
  • No Work Authorization for Dependent Family Members: The EAD application available to AOS applicants is not available to applicants for immigrant visas. Therefore accompanying family members who have not been able to work in the United States will continue to be unable to work until their immigrant visas have been issued and they have been readmitted to the United States as permanent residents. Since the EAD card can normally be obtained within three months, and the immigrant visa interview may not occur for more than a year after the I-140 is filed, this can result in a considerable delay in obtaining employment authorization for family members.
  • No AC21 “portability:” AC21 section 106 allows for portability for AOS applicants if there are changes in the job offer so long as the new job is for a “same or similar occupation” and so long as the AOS is pending for at least 180 days. This relief only applies to adjustment applicants. Therefore, someone who opts for CP rather than AOS is forgoing the possibility of porting their application for permanent residence to another employer or to another job if such an event occurs. If someone chooses to process through CP, major changes which may occur in the nature of the job duties or geographical location of employment before the CP interview, or prior to admission as an immigrant following the CP interview, can serve to render the approved labor certification and/or I-140 petition invalid. If the employer goes out of business, or is acquired by another company which has no intention of continuing the permanent resident process, there will be no basis for approval of the CP application for a permanent resident visa. For CP cases, the offer of employment which provided the initial basis of the filing of the CP application must continue in effect until the applicant has been granted lawful permanent resident status.

The choice between Adjustment of Status and Consular Processing is not a “one size fits all” situation. Many factors have to be taken into account before an applicant for permanent resident status makes the decision to either apply for adjustment of status with the INS or for an immigrant visa at a US consulate abroad. Applicants should generally weigh the options carefully before making a final decision.

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