Adjustment of Status vs. Consular Processing: Making the Decision

You must choose which path to take in becoming a lawful permanent resident (a green card holder). There are two means of actually becoming a lawful permanent resident. The first option is called Adjustment of Status (AOS). This is the most common option employment-based immigrants take, in which you and your spouse/children file Form I-485 with the U.S. Citizenship and Immigration Services (USCIS) here in the United States. On the day your I-485 applications are approved, you become lawful permanent residents. The second option involves completion of immigrant visa processing outside the United States (referred to as Consular Processing (CP)). This option is less commonly used by employment-based immigrants. In CP, you (and any spouse/children) have to make a trip to your home country for an interview at the U.S. embassy/consulate to get an “immigrant visa.” Once you receive the immigrant visa, you and your family use the immigrant visas to return to the United States and you become lawful permanent residents upon being admitted at the port of entry.The end result is the same—you and your family will become lawful permanent residents— however, each has advantages and disadvantages:Reasons why AOS is better than CPIf you choose AOS:

1. You and your family do not need to go to an interview at the U.S. embassy/consulate in your home country and, in most cases, your I-485 application will be approved without an interview here in the United States. If there is an interview, your attorney can come to the    interview with you at the local USCIS office. With CP, you and all your family members must make a trip to your home country and, sometimes. you will only get three to four weeks of notice prior to the date scheduled for the interview, making it difficult to get plane tickets, coordinate travel with business/personal plans, etc. Additionally, your attorney typically does not accompany you.
2. As long as the I-485 AOS is filed on time, your temporary nonimmigrant work authorization (H-1B, O-1, P-1, etc.) can expire and you can keep working with a “work authorization card.” (However, I generally recommend against working with a “work authorization card” if possible, so that you can continue to maintain your “nonimmigrant” status until the moment you become a lawful permanent resident). With CP, you must have H-1B or other nonimmigrant work authorization until the time you have your interview at the embassy/consulate and re-enter on the immigrant visa.
3. While the I-485 is pending at USCIS, you can get travel authorization (Advance Parole) in case you need to leave the United States and re-enter before the I-485 is approved, without needing to apply for a new visa in your passport. With CP, if you travel outside the United States before your immigrant visa interview, you will need to have a valid visa in your passport in order to re-enter the United States.
4. Within approximately three months or less from the date of filing the I-485, your spouse can get a “work authorization card” if he or she does not have his or her own independent work authorization. With CP, unless your spouse is already maintaining H-1B or other temporary nonimmigrant work status, your spouse cannot work until after the immigrant visa interview when you all re-enter the United States on immigrant visas.
5. In certain situations, you can change employers if USCIS has not approved your I-485 AOS application after 180 days or more have passed since filing of the application. This is available provided you will be employed in the same or similar type of position, without jeopardizing your whole lawful permanent residence process up to this point. With CP, if you leave your employer or lose your job before you have completed immigrant visa processing abroad, you lose the right to get the immigrant visa and have to start the lawful permanent residence process all over again.
6. In the unlikely chance that your I-485 is denied, the denial can be challenged here in the United States. If you have any criminal convictions or other reasons why USCIS may think you cannot become a lawful permanent resident, these can be addressed by your attorney while you are in the United States. With CP, should these types of issues be raised, you will not have your attorney immediately present with you to assist you in resolving these issues. Additionally, if the visa application were to be denied, there would be no legal recourse (i.e., no ability to appeal the denial), which could lead to difficulties in your returning to the United States.
7. You do not have to obtain “police certificates” from every country that you have lived in for more than six months since the age of 16. With CP, you are required to present these police certificates at your immigrant visa interview.
8. If you have accrued “unlawful presence,” you may be able (in limited circumstances) to adjust your status without ever having to leave the United States, thus avoiding triggering of the three– or ten-year bars (applicable to individuals who have been unlawfully present in the United States for at least six months). With CP, you are traveling outside the United States to attend a U.S. embassy/consulate for your visa interview. Once you leave the United States voluntarily, you may automatically trigger an unlawful presence bar.

Reasons why CP is preferred over AOS

If you choose CP:

1. You may become a lawful permanent resident faster. Depending on your country of birth, you may be able to get to an immigrant visa interview and re-enter the United States as a lawful permanent resident within six to12 months from the time your I-140 Immigrant Petition is approved by USCIS, which is sometimes faster than I-485 adjustment of status processing. (However, depending on your preference category, the possibility of retrogression of priority dates on the Visa Bulletin makes the hoped-for faster processing time for CP less certain.)
2. When you obtain an immigrant visa, it will be valid for six months. Thus, it is possible to take a vacation or visit with friends or family before returning to the United States you or anyone in your family has been out of status or worked without authorization, please discuss with us immediately whether or not the individual will be able to obtain lawful permanent residence despite these violations.

There is no right or wrong choice. In some instances, CP may be required, such as, for instance, if you have been out of status or worked without authorization and are, therefore, barred from AOS without a qualifying exemption. Because a departure from the United States could trigger an “unlawful presence” bar, it is important that we know whether you or your dependents have ever been in the United States out of status or have ever worked in the United States without authorization. Generally, we recommend that CP be used only with “clean” cases and where clients don’t mind retrieving police certificates and traveling home for the immigrant visa interview, and only in preference categories for which it appears that immigrant visa numbers will continue to remain available (no “cut-off” date on the Visa Bulletin) for the foreseeable future.