Adjust or Consular Process?

If you have an approved immigrant petition (I-130 or I-140), and your priority date is current, and you are currently in the U.S., you may have a choice between adjusting status, or leaving the U.S. to consular process. Which is better? There is no simple answer to this question. You have to get all the facts, then make your own decision. Here are some of the factors you must consider. Please understand that every case is different, and it is not possible to list every possible consideration. You should consult with your immigration lawyer before making your final decision.

Consular Processing.

• There is one good reason to consular process: it can be a lot faster. With consular processing, you can often get your green card within about six months of approval of your immigrant petition. In the past, adjustment has taken two years or more for employment-based cases at the Service Centers. Family based cases can take a year or more, depending on the local office where the interview is held.
• Recently, adjustments have been processed more quickly, often eliminating the advantage of consular processing. However, the State Department does not use the FBI name check process. Therefore, some adjustment cases are delayed for several years by FBI name checks.
• With consular processing, all members of your family who are immigrating with you must go to a U.S. consulate abroad, usually from your home country. You cannot select the appointment date and you may have to leave on short notice (around four weeks). This can be inconvenient and expensive. Your employer won't be pleased if you have to leave in the middle of an important project.
• If there is a problem with your application, you may be stuck overseas waiting while some necessary document is located or some other problem solved.
• With consular processing, in most cases you must get a medical exam in the country where the consulate is located. Some foreign doctors are believed to be more strict about minor medical problems.
• If you consular process, you will have an interview. For employment based adjustments in the United States, there is no interview in the majority of cases. There is always a small chance that something may be said at the interview, or some misunderstanding will occur, that will harm your case.
• If you have been "unlawfully present" in the U.S. for more than six months (usually because you have overstayed the date on your I-94), and then leave the United States, you will be subject to a three-year or ten-year bar. In such cases, you must adjust in the United States if at all possible. The three-year or ten-year bars only arise if you leave the United States.
• On the other hand,  you may have committed a minor status violation or worked illegally in the United States. Such violations may mean you are not eligible to adjust, but would not subject you to a bar. In that event you must consular process! The bottom line is this: if there is any problem with your immigration history, be sure to discuss your situation with a competent immigration lawyer before making a decision.
• In employment-based cases, you cannot change employers if you are consular processing. The job offer from the I-140 petitioner must be available at the time of the interview. The new law that allows people to change employers after 180 days applies only to adjustment cases.

Adjustment of Status.

• Adjustment of status in employment-based cases can take two years or more. This is usually a lot longer than consular processing.
• On the other hand, adjustment is more convenient. You don't have to face the stress and expense of a trip abroad.
• If a problem arises in adjustment, the CIS sends you or your lawyer a letter and the matter is usually resolved painlessly. This causes some delay, but does not disrupt your life. If a problem arises while you are stuck in India or Pakistan, you may be there for a long time.
• Once you file for adjustment, you can get work authorization and so can all the members of your family. You cannot get work authorization while waiting for an interview at a consulate.
• Filing for adjustment is a period of authorized stay. So if your H-1B time is about to expire, you can stay in the U.S. as long as it takes until your adjustment is approved. It is possible to get extensions of an H-1B while you are waiting for an interview, but this causes significant added expense for your employer.
• Under the "AC21" law, you can change employers if your adjustment has been pending for 180 days, and your I-140 has been approved. The new employment must be the same or similar to your old job.
• If priority dates retrogress between the time you file your adjustment, you cannot get your Green Card until your priority date becomes current again. But you can remain in the U.S. and get work authorization. By contrast, if priority dates retrogress while you are waiting to consular process, you are out of luck. You cannot stay in the U.S. and work unless you are in a valid nonimmigrant status such as H-1B. For this reason, people who are applying in the EB-3 category, and most people from India or China in the EB-2 category, will almost always choose to adjust.
• If you have been unlawfully present for more than six months, you must adjust if at all possible. (You may be able to do so under section 245(i) by paying an extra filing fee, or in some other manner.) If you leave the U.S. under these circumstances, you will be subject to a three-year or ten-year bar.
• To be eligible for section 245(i), a labor certification or immigrant petition must have been filed on your behalf on or before April 30, 2001.

The adjustment decision is vitally important. Consult with us first.