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American Bar Association - Defending Liberty, Pursuing Justice

March 2008

Vol. 4, No. 2

Litigation

 

Some Considerations When Electing to Process for Permanent Residence via Adjustment of Status As Opposed to Consular Processing

Sometime before one reaches the final phase of processing an employment based immigrant petition, it is time to determine whether to complete the process in the United States through an application for adjustment of status filed with the United States Citizenship and Immigration Services (USCIS) or through issuance of an immigrant visa at a United States Consulate abroad. Most employment-based applicants physically present in the United States have the choice of pursuing either route, and therefore they must carefully consider each, to assess their relative advantages and disadvantages to make a well-reasoned decision on how best to proceed.

This article will identify some of the differences between the two processes that may bear on that decision, and offer some guidelines for discussion of the issue with clients. These guidelines are intended to help sharpen the focus of clients sufficiently to assist them in making the best choice for their particular situation. In review of the following discussion points and on reflection, you will see that there is no right or wrong selection, because many factors will affect, positively or negatively, the determination of the best course of action for each individual client. As with any legal issue, the choice made in each case will depend on the particular facts and circumstances in which the client finds him or herself. This article is organized in a checklist format that notes some of the advantages and disadvantages associated with each alternative, marked with a plus (+) or a minus (−) designations for ease of reference.

At the outset you must determine if the client is eligible to adjust. For example, foreign national crewmen, aliens in transit without visas, and aliens who entered under the visa waiver program pursuant to 8 CFR section 212.1 ( c ) as well as conditional resident investors under INA section 216 may not adjust status unless they are immediate relatives of United States citizens. Generally aliens who have engaged in unauthorized employment after January 1, 1997 are also ineligible; as are individuals who have failed to maintain legal status in the United States, including those who have violated status on prior visits to the United States who can also be disqualified from eligibility to adjust. Assuming, however, that adjustment is an available option, we can proceed to evaluate both adjustment and consular processing.

Adjustment of Status

Processing Time

(+) Where concurrent filing of the I-140 and I-485 is possible, adjustment of status may be faster.

Medical Requirements

(+) Completed in the United States. Individuals schedule examinations before a USCIS-approved doctor.

(+) Option to partially complete and submit application, for example, in pregnancy, the ability to complete when child is born.

Interview Requirements

(+) Most cases are approved by the USCIS Service Center without interview, but USCIS reserves the right to refer individual cases to the local district office for interview.

(+) If the case is referred for an interview, an attorney can be present.

(+) There will be no additional expense to travel to interview, because most interviews are waived. If an interview is scheduled, it will be held in district office where the principal and all family members reside.
 
(+) Flexibility in changing appointments, if needed.

Consular Processing

Processing Time

(+) In the event of quota retrogression, or if one is unable to make concurrent filings, or in the event of backlogs at the service center, consular processing may be faster.

Medical Requirements

(−) Medical exam is completed overseas by a consular approved doctor prior to appointment. (Generally must be completed 1–14 days prior to the appointment. This will extend the time one must be in the foreign country to complete the paperwork.

(−) No option for partial completion.

Interview Requirements

(−) An interview is always required in consular processing. The individual may be quizzed on his or her knowledge of job duties, employment and grounds of inadmissibility.

(−) There is no right to attorney representation at most consulates.

(−) Requires travel by the principal and all family members to the United States Consulate in the country of nationality (or last residence) requiring purchase of tickets and travel arrangements for principal applicant and family members at significant additional cost.

Availability of Employment Authorization

(+) Employment authorization is available to the principal, spouse and family members within approximately 90 days after filing for adjustment of status.

(+) Obtaining employment authorization may eliminate the need to extend nonimmigrant status during the pendency of the adjustment application, as well as the cost of the filing and attorneys’ fees.

Possibility of Portability to Enable Alien to Accept New Employment

 (+) Under AC21, employment-based adjustment applications are not required to remain employed with their sponsoring employer if USCIS does not adjudicate their applications within 180 days. They may leave that employer for a similar position and continue their case. Note the advantage here in the event of involuntary separation from a job, for example, in a layoff. (Caution: Current USCIS interpretation requires I-140 to be approved and I-485 to have been pending more than one hundred and eighty (180) days to benefit from portability).

(+) In the event of a merger, acquisition or sale of business unit after 180 days only requires a letter to USCIS notifying them of the change.

(−) Little or no flexibility in changing appointments and appointments are scheduled on short notice.

Availability of Employment Authorization

(−) No employment authorization is available during pendency of consular processing.

(−) Must continue to maintain nonimmigrant status during the pendency of processing or risk being out of status and accruing time toward the 3/10 year bars.

Possibility of Portability to Enable Alien to Accept New Employment

(−) No portability available; the individual must remain employed until the visa is issued.

(−) In the event of a merger, acquisition or sale of business unit, a new I-140 petition will need to be filed with USCIS and must be found to be a successor in interest.

Travel Out of the United States

(+ / -) Upon filing of an application for adjustment of status, applicants may have restrictions on travel outside the United States unless they are in H or L status. Applicants other than H/L holders must file for and receive advance parole permission prior to departure, or their adjustment application will be deemed abandoned. (Processing of an advance parole will average 30–120 days).

(+) Applicants for adjustment of status can travel under advance parole or may continue to use their existing H/L visas to return to the United States.

(+) There are no immigrant intent issues when traveling with advance parole.

(−) Applicants traveling on parole will normally be sent to secondary inspection upon returning to the United States prior to admission, to confirm identity and admissibility.

(+) Parole is valid for multiple entries and is a significant advantage for Chinese nationals whose visas are limited as to number of entries and duration of validity.

Age Out For Children

(+) If a child is near age 21, adjustment of status (especially concurrent filing may protect the child better than consular processing as to the right to continue processing after the child reaches 21).

Travel Out of the United States

(−) Must continue to maintain nonimmigrant status to travel abroad and could face delays in securing nonimmigrant visa abroad prior to return to United States.

(+) Consular applicants are able to travel without restriction assuming they have a valid visa for travel.

(−) During the pendency of application, the applicant must continue to maintain nonimmigrant status to return to the United States.

(−) Consular applicants can be denied nonimmigrant visas because of issues of immigrant intent after filing an immigrant petition.

(+) Consular applicants returning on valid nonimmigrant visas are normally not referred to secondary inspection.

Age Out For Children

(−) If a child is near age 21, there is no guarantee that the appointment will be scheduled before the age out occurs, therefore, adjustment of status may protect the child better than consular processing.

College Applications/In-State Tuition

(+) Merely having applied to adjust and providing a receipt notice may help in obtaining in-state tuition rates.

Family Abroad

(−) If the family (spouse and children) is outside the United States, principal will need to obtain permanent residence, process an I-824, prior to scheduling of consular appointment for the family, which will delay their entry.

Marriage

(+) In the event of long-range marriage plans timing may be easier with adjustment than with consular processing to make sure the marriage can take place in advance of the grant of permanent residence.

Additional Document Requirements

(+) No police certificates required.

(+) Medical exam submitted with filing.

(+) If a documentary problem is found, USCIS will request additional material and/or refer for interview. Applicant retains right of employment authorization and travel during continued pendency of processing.

College Applications/In-State Tuition

(−) It is unclear if having applied for an immigrant visa at the consulate is of similar persuasive force.

Family Abroad

 (−) If the family (spouse and children) is outside the United States, principal will need to obtain permanent residence, process an I-824, prior to scheduling of consular appointment for the family, which will delay their entry.

Marriage

(−) Consular interviews are scheduled on short notice and not easily rescheduled, so it may not be possible to complete the marriage when planned.

Additional Document Requirements

(−) Police certificates are required from all countries where the applicant has lived for more than six  months since age 16. This can be quite burdensome.

(−) Medical exam completed overseas at consular approved doctor prior to appointment. (Generally must be completed 1–14 days prior to appointment).

(−) If a documentary problem is found, the foreign national may need to remain abroad until issue is resolved.

Delays

(+) If grounds of inadmissibility is found or a security check delay occurs, applicants are able to remain in the United States and continue working until waiver is processed or security check cleared.

Waivers and Appeals

(+) If an applicant is subject to grounds of inadmissibility for which a waiver is available; it is preferred to process in the United States.

(+) The possibility of appeals and judicial review exists in the event of an adverse decision under the adjustment (Immigration Court, BIA and Federal Court).

Delays

(−) If a ground of inadmissibility is found or a security check delay occurs, the foreign national may be stranded outside the United States until the issues are resolved.

Waivers and Appeals

(−) There is no similar right of review in consular matters. Denial of an immigrant visa at a consular post, based on questions of fact, is essentially nonreviewable, although questions of law are reviewable through the Department of State Advisory Opinion Section. If a waiver of a ground of inadmissibility is required, processing time could be significant without the ability to return to the United States until the final waiver is granted.

(−) There is no possibility of appeal or judicial review if the case is processed abroad.

Conclusion

As a general observation, processing time seems to have been the main determining factor for most individuals when considering adjustment as opposed to consular processing. Over the last several years though, the choice of adjustment of status or consular processing appears also to be impacted greatly not as much by personal factors but by the economy. With the economy causing layoffs and force reductions, maintaining one’s job security and the security net of the AC21 portability provisions have prompted more individuals to file for adjustment and forego what might be shorter processing times via consular processing. Employers also seem to prefer that their employees opt for adjustment of status because it provides more predictability in that employees do not have to leave projects at a critical time for an indefinite period to complete medical examinations and attend a consular interview, especially when adjustment results in only a small number of referrals for actual interview and most individuals will be approved outright without interview.

As can be seen from above, many competing factors must be considered when choosing between consular processing and adjustment of status. Each applicant must weigh the relative importance of processing times, potential travel limitations, work authorization for themselves and family members, portability, travel costs, subjecting themselves to medical examinations in a foreign country, participating in an interview outside the United States, whether they plan to travel during the pendency of the application, whether their visa classification or country of nationality limits their ability to travel, additional documentary requirements, and the other issues they face that are unique to their situation. Because the existence of all of these factors can affect their choice, counsel should take care to discuss each of them with the client and to consider them all when attempting to guide the client to the right decision for his or her particular set of circumstances.

Neil S. Dornbaum and Kathleen M. Peregoy are members of Dornbaum & Peregoy LLC Newark, New Jersey. Their practice is limited to immigration and naturalization with special emphasis on employment-based immigration.

© Copyright 2008, American Bar Association.