Adjustment of Status and Consular Immigrant Visa Processing
The final stage of the permanent residence immigration process is either an application to adjust status to permanent residence filed at the INS or an application for immigrant visa at a U.S. consulate overseas. Some applicants can only adjust status (such as aliens applying under "245(i)"). Some applicants can only apply at a U.S. consulate (such as aliens ineligible to adjust status because of unauthorized employment). Some applicants have a choice. This summary is for applicants who have a choice.
Many factors go into advising a client who can choose between these two options. Depending upon the relative importance given by the client to these different factors, the client may appropriately choose one or the other option as being best. This analysis sets out the relative advantages of each option to enable the client to make an informed judgment.
Advantages of Adjustment of Status to Permanent Residence
1. In employment-based cases, there is usually no interview. There is always an interview on consular cases.
2. Consular cases require travel by the principal applicant and family members to the U.S. consulate in the country of nationality or last residence. Adjustment of status does not require any international travel.
3. Attorneys can be present if an interview does occur on an adjustment of status application at the INS. Clients have no right to attorney representation at many U.S. consulates.
4. Police certificates from all countries where the foreign national lived for six months or more since age 16 are required in consular cases. They are not required in adjustment of status cases.
5. Employment-based adjustment applicants are not required to remain employed with their sponsoring employers if the INS does not adjudicate their application within 180 days (which virtually never occurs). This flexibility -- known as portability -- does not exist on cases filed only at a U.S. consulate.
6. The adjustment applicant, and his spouse and children under age 21, can obtain employment authorization documents shortly after filing for adjustment of status. This eliminates the need to extend nonimmigrant status during the pendency of the adjustment application. It is not possible to obtain an employment authorization document during the pendency of the consular processing of an immigrant visa application.
7. There are procedures for appealing or renewing a denied application for adjustment of status. There are no such procedures for a denied immigrant visa application.
8. If there are INS delays in deciding an adjustment application, the foreign national is able to remain in the United States and continue working. If there are delays in the consular processing of an immigrant visa application following the interview, the foreign national may be stranded outside the United States until the problems are resolved.
With all of these advantages of adjustment of status, why would anyone ever choose to process an immigrant visa application at a U.S. consulate? The following are some of the reasons:
Advantages of Consular Immigrant Visa Processing
1. The biggest advantage is timing. Traditionally, immigrant visa processing at a U.S. consulate may save 3 to 18 months depending upon the U.S. consulate and the INS office that would have jurisdiction over the adjustment of status application.
2. Upon the filing of an adjustment of status application, the foreign national may have restrictions on travel outside of the United States. With the exception of aliens maintaining H or L status, adjustment applicants must file for and obtain advance parole travel permission to leave the U.S. Immigrant visa applicants are able to travel without restriction assuming that they have valid visas for travel.
3. An applicant for adjustment of status may need to maintain valid status during the pendency of the adjustment of status application. There is no such requirement for the immigrant visa applicant (however, if the immigrant visa applicant has 180 days of unlawful presence in the United States, she will be subject to a 3 year bar to returning to the United States; 10 years if she had one year of unlawful presence).
4. If the family (spouse and children) of the foreign national are outside of the U.S., it is often advantageous for the entire family to process their immigrant visa applications together at the U.S. Consulate.
With these factors in mind, the permanent residence applicant should be able to make an informed judgment regarding the venue for completion of his permanent residence case.
About The Author
H. Ronald Klasko is a partner and chair of the immigration law group at Dechert. A former national president of the American Immigration Lawyers Association (AILA), he served as its general counsel from 1996 to 1999. Ron is the 1999 recipient of the AILA Founders Award, bestowed on the individual or group who has the most important impact on immigration law. He has been a member of the board of governors of AILA since 1980 and formerly served as chair of the Association's Philadelphia Chapter. He has also served as national chair of the Business Immigration and the Task Forces on Employer Sanctions, H and L (business) Visas and Labor Certifications. He is the co-author of the two-volume Employers' Immigration Compliance Guide, a leading publication on the immigration laws affecting employers. A former adjunct professor of immigration law at Villanova University Law School, Ron is a frequent lecturer on immigration law and has appeared on national and local television and radio discussing immigration law issues. Ron has been selected for inclusion in Best Lawyers in America, Who's Who in America, Who's Who in American Law, and Who's Who of Emerging Leaders in America.