Immigrants’ Last Decision:

Adjustment of Status or Consular Processing

All intending immigrants, whether their petitions are family-based or employment-based, must decide how to complete this process.  Generally, they have two options of obtaining lawful permanent status (aka “Green Card”).  First, for those who are already in the U.S., they may apply for adjustment of status from a non-immigrant status to be a legal resident.  Secondly, an intending immigrant may also apply for an immigrant visa at a U.S. Consulate Office outside of the United States, and with that visa, he or she may enter the U.S. as a landing immigrant.  This article attempts to explore the differences between these two avenues and the advantages and disadvantages of each option.

Is there a choice?

First of all, not every intending immigrant would have an option.  If the person is physically outside of the U.S. and does not have a legal visa to enter the U.S., she must undergo consular processing.  Even if a person is in the U.S., because of certain limitations under the law, they may not be eligible to adjustment his or her status in the U.S.  For example, foreigners who entered as crewmen or under the visa waiver program, unless they are being sponsored by an immediate relative, are not eligible to apply for adjustment of status.  Furthermore, for those who have worked illegally in the U.S. or lost legal immigration status, unless they are eligible for 245(i) relief, they would not be able to adjust their status.  Finally, for those individuals who have stayed in the U.S. illegally for more than six months or one year, if they ever left, or removed from, the U.S.,  they are barred from re-entering to the U.S. for 3 years or 10 years respectively, unless they are granted a waiver.  This group of individuals should not choose consular processing. 

Consular Processing

            Before the era of retrogressing and case backlog, consular processing is generally the faster option.  After preparing all documents and making an appointment with an Embassy, a person sometimes can obtain an immigrant visa on the same day.  Compare this to adjustment of status, in which the applicant must first wait for the USCIS to process the application forms, it is more difficult to plan one’s affairs and immigration schedule with adjustment.  However, consulate processing has its disadvantages.  For example, the processing speed and interview schedules of the Embassies vary.  Some of them are faster while others may be less efficient.  For example, Hong Kong, Taiwan, and Singapore are generally pretty efficient while the processing time at Zhuangzhou and Mumbai may not be so.

            Another disadvantage of consular processing is that everybody must be interviewed and produce “good conduct” certificates from all previous countries of residence.  If the visa application is denied, there is usually no way to file an appeal.  For those who have previous immigration and / or criminal violations, although they may request for a waiver, the applicant is not allowed to return to the U.S. while the waiver petition is pending.  It is also generally difficult to obtain waiver.

            Families who are already residing in the U.S. must also consider the issue of travel costs and accommodation.  For families with teenagers, the most important issue to consider is the problem of “aging out” (a teenage child may not be able to follow the principal applicant to immigrate if he or she reaches the age of 21).  It is not clear whether or not the Child Status Protection Act, which protects the “aged-out” children in the adjustment process, is also applicable in consular processing. 

Adjustment of Status

            In addition to its unpredictability and sometimes slower processing, adjustment of status also has other disadvantages.  If the applicant’s family members are outside of the U.S., they must wait for the approval of the principal’s application, and for such approval to reach the Embassy, before they can be petitioned for.  Other than these issues, the cons of consular processing are the pros of adjustment:  Interviews are waived for most of the employment-based petitions; applicants may legally enter and leave the U.S. during the waiting process; “aging-out” children are usually protected by the Child Status Protection Act; and denied applications can be appealed to higher authorities. 

Impact of Backlog and Retrogression

            Under the current dark cloud of retrogression and case backlog, adjustment presents the applicant some advantages.  The provisions of AC21 allow an applicant to port his or her applications to another employer if the underlying I-140 has approved and the I-485 petition has been pending for more than 180 days.  Further, mergers, sale and acquisitions of the petitioner’s business that take place after 180 days of the filing only need to be notified by the Employer to USCIS in writing.  These advantages are absent in the case of consular processing.  Imagine the feelings of an intending immigrant who, while waiting for his interview in an overseas country, received a notification that he or she has been laid off.  This person will most likely not able to return to the U.S. in the near future.  Other delays during consular processing will also impose a great deal of inconvenience to an employer, who has a business to run, and an employee, who has a job to do.  Adjustment of status is a lot more flexible under these circumstances. 

Conclusion

            There are pros and cons to both adjustment and consular processing.  An applicant must carefully consider his or her specific situation, including immigration status, family situation, children’s ages, employer’s requirements, travel expenses, the strength and weaknesses of the underlying petitions, etc., when choosing between these options.  This is the last decision for intending immigrants to make.   It can also be the most important one.