Last Updated on April 20, 2024 by Anda Malescu
When it comes to the avenue of obtaining your green card, the path can differ and there is no one-size fits all solution, but the destination is the same. Basically, whether you are opting for adjustment of status (AOS) or consular processing in the end it leads you to the same destination– permanent resident status in the United States.
The choice between adjusting status in the United States vs. consular processing ultimately depends on individual circumstances. This article explores the pros and cons of adjustment of status vs. consular processing generally.
Before considering whether to file for adjustment of status or consular processing, you must first obtain an approved petition, such as an I-140, I-130 or other relevant form from USCIS, that serves as the basis for your application for permanent residence in the United States. With your underlying petition approved, the next step is deciding between adjustment of status and consular processing.
To assist you navigating your options, this article discusses the key characteristics of adjustment of status vs. consular processing, including eligibility, processing timelines, work permit availability, travel options, duration and interview requirement.
Adjustment of Status Within the US
Key characteristics of adjustment of status are:
- Convenience.
The primary advantage of adjustment of status is the convenience of having the adjustment application adjudicated in the United States without the need to travel long distances and incurring the inconvenience and expense of travelling to the US Consulate abroad to appear for the required interview.
Adjustment of status offers the advantage of filing and adjudicating your application within the United States. This is particularly relevant if you already live and work in the United States because you and your family members can obtain the green card without disrupting your schedules to travel abroad for an interview at the US Consulate.
- Interview Waiver.
USCIS can waive interviews for adjustment of status applications. In fact, USCIS usually waives adjustment of status interviews for I-140 employment-based petitions.
With an interview waiver, USCIS adjudicates the adjustment of status application based on the forms and documents submitted, you do not attend an interview and if approved, you receive your green card at the address listed on the application.
While interview waivers are more commonly granted for adjustment of status applications based on I-140 employment-based petitions, USCIS also extends interview waivers on a more limited basis for applications stemming from I-130 family-based petitions. It is important to note that all adjustment applications based on the Diversity Visa Lottery require interviews.
- Work permit (EAD) and travel document for principal and dependent family members.
You and your dependent family members can apply for a work permit (employment authorization document or EAD) and advance parole (travel document) concurrently with, or after filing the adjustment of status application. The work permit allows you to work in the United States without restrictions or be self-employed.
The processing time for a work permit is on average 3 months and the work permit is valid for one year, and can be renewed until USCIS adjudicates the adjustment of status application.
Principal visa holders in H, L or O categories can file for an extension instead of, or in addition, to filing for a work permit. Family members who were prohibited from working in the United States, such as those in H4, O3 or TD status, can also apply for work permit together with their adjustment of status application.
You can generally apply for advance parole to be able to travel outside the United States while your adjustment of status is pending. However, if you leave the US before USCIS approves your advance parole, then your Adjustment of Status application will be denied for abandonment. Please note that travelling outside the United States with an approved advance parole document does not guarantee that you will be allowed to reenter the United States.
If you hold multiple entry, valid H or L visas, you can travel on those visas while your adjustment of status is pending without the need to apply for advance parole, provided that you do not violate the status of your visa and used the work permit to accept employment in the United States.
However, if you hold other visas such as B1/B1, TN, E-1, E-2 or O, you must obtain an advance parole document to travel outside the United States while your adjustment of status application is pending. If you travel abroad without an advance parole document, then your adjustment application is deemed abandoned.
- AC21 portability for employment-based immigrant visa petition.
An important advantage of adjustment of status for individuals with approved I-140 employment-based visa petitions is the portability provision of the American Competitiveness in the Twenty-First Century Act (AC21).
The AC21 portability provision allows individuals who are applying for adjustment of status with approved I-140 visa petition in the EB1, EB2, or EB3 preference category to transfer or “port” to a qualifying new job offer if the adjustment of status application has been pending for 180 days or more.
In this case, you are permitted to change jobs with the same or different employer or move to a different job location as long as the new job offer is in the same or similar occupational category as the original job offer.
In the event of a change in employment after an adjustment of status application has been pending for 180 days or longer, it is imperative to notify USCIS and request portability under AC21to the new employment.
Portability under AC21 is not available for consular processing as you will see below.
- Less stringent documentary requirements.
With adjustment of status, you do not need to obtain and present police certificates.
If you go through consular processing, you must obtain police certificates from your country of nationality, latest residence abroad, and any additional country where you resided for at least 12 months after reaching the age of 16. However, it is important to note that in consular officers can request police certificates from countries with residency periods exceeding six months, regardless of the twelve-month minimum requirement, exacerbating the challenge of obtaining police certificates and driving up costs.
Adjustment of status alleviates the burden of obtaining police certificates. Instead, adjustment applicants must attend a biometrics appointment to provide their fingerprints and they must provide arrest or conviction records, if any.
Medical examinations are required and are conducted by USCIS-approved physicians in your area of residence.
- Concurrent Filings.
Concurrent filing of an adjustment of status application is available for certain immigrant visa categories. This is possible when an immigrant visa is available at the time of filing the underlying petition.
For certain immigrant categories such as immediate relatives of US citizens (spouse, parent or children) and EB1 employment-based first preference categories, immigrant visas are always available. The immigrant investor category EB-5 is also current for most countries, including Canada. This means that you can file an adjustment of status application concurrently with your I-140 or I-130 petition, along with an application for an EAD work permit and advance parole travel document. The concurrent filing has the potential to expedite processing timelines.
However, please note that concurrent filing is not universally recommended for employment-based cases. For these situations, it is advisable that you consult with an immigration attorney to determine the most suitable strategy for your specific circumstances.
- Longer Processing Times.
Adjustment of Status processing times can be longer due to backlogs at USCIS. The timeline for adjustment of status applications varies greatly based on the immigrant category. Immediate relatives and applicants in the EB-1 employment-based first preference category typically experience processing times ranging from 6 to 12 months. Conversely, applications for other categories can take up to 20 months or even longer.
Consular Processing
Key characteristics of consular processing are:
- Shorter Processing Times.
The primary advantage of consular processing is shorter processing times compared to Adjustment of Status applications. The processing times for consular processing application is six to twelve months from the date an immigrant visa number is available, depending on the particular Consulate’s workload. The processing times are the same for approved I-140 employment-based preference petitions.
With consulate processing, your USCIS approved petition is forwarded to the National Visa Center of the U.S. Department of State and thereafter to the U.S. Consular Office in the foreign country of residence or country of birth for processing and interview.
- Interview Required, Inconvenience and cost
You are required to appear for an immigrant visa interview at the US Consulate abroad if you choose to process your green card through consular processing. Also, all family members seeking immigrant visas through consular processing, regardless of age, must appear for an interview. Unlike with the US Citizenship and Immigration Services (USCIS), Consulates do not waive the interview requirement.
If you already live and work in the United States, the primary disadvantages with consular processing are the inconvenience and expense of traveling to the US Consulate to appear for the required interview.
Consulates schedule interviews at a time that is convenient to the Consulate, without taking into consideration your personal schedule or employment situation in the United States. Appointment dates are generally difficult to change and result in additional delays in the application process.
If you do not live in the United States, then you are less impacted by the interview requirement.
Attorneys are usually not allowed to appear with their clients at consular interviews. However, in the case of adjustment of status interviews, attorneys generally appear at interviews scheduled by USCIS.
- Documentary requirements.
Consular processing imposes stricter documentary requirements compared to adjustment of status within the United States. Consular processing requires gathering a larger number of documents and you can expect that the process is burdensome.
Every individual seeking an immigrant visa though consular processing must provide several documents, including, valid passport, civil documents (birth certificate, marriage certificate, divorce or death certificates, if any), police report, and a medical exam at a physician accredited by the US Embassy abroad.
With consular processing most individuals must obtain police clearances from all countries in which they have resided for more than six months since reaching the age of 16.
If you have resided in multiple countries for the required amount of time after turning 16, then you must request police certificates from each of those countries. This process can be inconvenient and expensive because of the potential need to travel to some countries to request police certificates in person, while others may have lengthy processing times for obtaining the certificates.
Moreover, those who have served in a foreign military organization must obtain a record of their military service.
For information regarding the police, military, and other vital records for each country, please review the Department of State website.
The medical examination is scheduled with an accredited physician or medical clinic selected by the Consulate where the interview takes place. You and accompanying family members may need to be there up to one week in advance of the interview date. Medical examinations conducted by USCIS-approved physicians or clinics are not acceptable.
- No work authorization or advance parole while visa application is processing.
Individuals applying through consular processing cannot obtain a work permit or travel document (advance parole) while their immigrant visa is processing. This is especially important for those who reside with their families in the United States. However, if you do not live in the United States these details are less relevant.
The work permit (EAD) which is available if you are applying for adjustment of status is not available if you are applying for immigrant visa through the consular processing.
Therefore, family members in H-4, O-3 and TD status 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 you can generally obtain the EAD card within three months, and the immigrant visa interview can take a year to be scheduled, this can result in a considerable delay in obtaining employment authorization.
The same applies to travel documents. If you opt for consular processing, advance parole is not available, which depending on your nonimmigrant visa can restrict your ability to travel while your immigrant visa is processing.
Generally, if you apply for immigrant visa though consular processing and you have a valid nonimmigrant visa, you can travel freely to the United States while waiting for the visa appointment to be scheduled. However, if you possess certain nonimmigrant visas, you must be more cautious when travelling to the United States while your immigrant visa application is pending for consular processing.
For example, if you are working in TN status in the United States, then you must be more cautious with international travel because at the time of each TN re-entry into the United States you must establish that you are working temporarily in the U.S. and you have a residence abroad which you have no intention of abandoning. This can be difficult if you have started the green card process, and you have an application pending at the US Consulate.
- No AC21 portability for employment-based immigrant visa petition.
The American Competitiveness in the Twenty-First Century Act (AC21) allows individuals who are applying for adjustment of status with approved I-140 employment-based immigrant visa petition in the EB1, EB2, or EB3 preference category to transfer or “port” to a qualifying new job offer if there are changes in the initial job offer and the adjustment of status is pending for at least 180 days. In order to be able to transfer or port the underlying approved I-140 on which the adjustment of status application is based, the new job offer must be in the same or a similar occupation as the original job offer for which the petition was filed. The new job offer can be with the same employer that filed the petition or a different employer.
The portability benefit is only available if you apply for adjustment of status and is not available for consular processing. This means that if you select to obtain your permanent residence through consular processing and you experience major employment changes such as a termination or a new job with the same or different employer, or changes in job duties or location, you cannot transfer your application for permanent residence to a new employer or another job. Such major changes before the consular interview, or after the consular interview but prior to admission to the United States as a permanent resident, can render the approved PERM labor certification and/or I-140 petition invalid.
Similarly, if your employer goes out of business, or is acquired by another company which has no intention of continuing your permanent resident process, then there is no basis for approving your permanent resident visa application at the US Consulate.
Consular processing requires the initial offer of employment that formed the basis of your application to remain valid until you receive lawful permanent resident status.
Summary Adjustment of Status vs. Consular Processing
To sum up, choosing between adjusting status within the US and consular processing depends on individual circumstances. Here are some key factors to consider:
Current Location:
- Adjustment of Status: You must be physically present in the US and have entered legally.
- Consular Processing: You can apply from inside or outside the US, typically in your home country or country of residence.
Travel:
- AOS: You can generally apply for travel document (Advance Parole) concurrently with, or after filing your Adjustment of Status application. However, if you leave the US before receiving the approved Advance Parole, your Adjustment of Status application will be denied for abandonment. Please note that travelling outside the United States with an approved Advance Parole document does not guarantee that you will be allowed to reenter the United States. At the airport or border, a US Customs and Border Protection (CBP) officer will make the final determination.
- Consular Processing: You cannot obtain an Advance Parole document. Traveling to the US while your consular application is pending is generally permitted, but in certain circumstances is not recommended.
Work Permit:
- AOS: You can apply for a work permit (EAD card) while your Adjustment of Status application is pending. On average, work permits can be obtained within three months.
- Consular Processing: You cannot obtain a work permit (EAD) if you are consular processing your permanent residence.
Interview Waiver:
- AOS: USCIS can waive interviews for adjustment of status applicants. In fact, USCIS often waives adjustment of status interviews for I-140 employment-based and I-130 family-based petitions. This means that you do not need to attend an in-person interview at USCIS offices to obtain your green card. USCIS can waive the interview requirement and approve the green card without an interview. With an interview waiver, you do not attend an interview and receive your green card at the address listed on the application.
- Consular Processing: There is no interview waiver available, and you are required to attend an in-person immigrant visa interview. Unlike with USCIS and AOS applications, Consulates do not waive the interview requirement.
Processing Time:
- AOS: Processing times can be longer due to backlogs at USCIS. The timeline for adjustment of status applications varies greatly based on the immigrant category. Immediate relatives and applicants in the EB-1 employment-based first preference category typically experience processing times ranging from 6 to 12 months. Conversely, applications for other categories can take up to 20 months or even longer.
- Consular Processing: Processing times can be shorter in some cases, particularly for employment-based applications. You can expect for an interview to be scheduled within six to 12 months from the date an immigrant visa is available.
Premium Processing:
- AOS: Premium processing for adjustment of status applications at USCIS is not available.
- Consular Processing: Premium processing at US Consulates is not available. Under specific circumstances, expedited processing may be available for certain cases. Examples include urgent medical emergencies or situations where dependent children are approaching the age of 21 and risk “aging out” of eligibility.
Eligibility:
- Both AOS and consular processing have specific eligibility requirements, which depend on your immigration category and situation.
Cost:
Adjustment of Status may be slightly more expensive due to additional filing fees compared to consular processing.
Malescu Law can assist
Contact our experienced immigration lawyers in Miami, Florida, USA to discuss your option between adjustment of status or consular processing for your green card or schedule an appointment for your immigration case.
We serve companies and individuals across all 50 states, the District of Columbia and Puerto Rico.
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