Adjustment of Status versus Consular Processing

US immigration laws required foreign nationals to apply for immigrant visas at a US
consulate abroad—usually in their country of last residence or citizenship. However, in
1952, the immigration laws changed to allow foreign nationals to adjust their status to
permanent residents upon meeting certain ineligibility criteria without departing the US.

Adjustment of Status

With certain exceptions, foreign nationals in the US who meet the criteria below, may apply
to adjust their status to permanent residents:
1.  Entered the US with inspection (did not enter illegally);
2.  Are filing a visa petition with a current priority date, or already have an approved
visa petition with a current priority date; and
3.  Have never worked in the US without employment authorization or been out of
lawful immigration status (with some limited exceptions for employment based
applicants and those applying for adjustment based on an immediate
relative category)

It is important to note that these criteria enable the individual to qualify for adjustment
of status, which is discretionary by the USCIS. The individual must also meet the criteria
for permanent residence, whether applying for permanent residence through adjustment
of status or consular processing.

Processing of Adjustment of Status Applications

In order to file for adjustment of status, the following documents are generally required:

  • Proof of vaccinations and a medical exam by a USCIS-approved physician
  • Birth certificates or affidavits of birth
  • Marriage certificate (if married)
  • Proof of divorce or death of spouse (if currently re-married)
  • A complete copy of the passport and I-94
  • All immigration documents evidencing maintenance of status
  • USCIS-style photographs
  • Proof of familial relationship to individual who petitioned/is petitioning for the
applicant (if applicable)

Advantages of Processing a Green Card through Adjustment of Status

1.  Work authorization

The applicant, and any dependent family members may be granted a temporary employment authorization document (EAD) for a one-year period which may be renewed while the adjustment of status application remains pending.  Applicants can file for work authorization regardless of maintenance of an underlying non-immigrant visa that is work authorized. H or L visa holders have the option of filing for an extension of their nonimmigrant work authorization instead of, or in addition to, filing for an EAD. It is advisable to apply for an EAD based on the adjustment of status application given the length of adjustment of status processing times to enable flexibility given changing job circumstances (see portability section below).

2.  Travel authorization

The applicant and any dependent family members may travel abroad while the application
remains pending through a discretionary grant of advanced parole. Once the applicant files
for advanced parole, he or she must remain in the United States until the advanced parole
is granted or the USCIS will deem that the individual has abandoned the application for
permanent residency. Again, H or L visa holders may travel on the underlying H or L in lieu
of applying for advanced parole. This rule does not apply to O or TN visa holders, as the
USCIS may find that they have abandoned their adjustment of status applications by
reentering the US using a visa with strict non-immigrant intent. Additionally, if the applicant
uses the EAD to prove work authorization, he or she must present the advanced parole
document when re-entering the US instead of using any underlying non-immigrant visa.

3.  Bars to re-entry

A foreign national who has been present in the US for more than 180 days without
authorization and who leaves the US is barred from reentering for 3 or 10 years or
permanently depending on the length of the time the individual remained in the US
unlawfully. Therefore, by pursuing adjustment of status by qualifying for one of the
exceptions to the maintenance of status requirement, these individuals will avoid the bars
to reentry. Immediate relatives of US citizens are not required to maintain their status to
file for adjustment. In addition, certain individuals who are the beneficiaries of two “amnesty” 
provisions may pay a $1,000 penalty fee and avoid the maintenance of status requirement
for adjustment of status. These individuals must pursue adjustment of status to avoid the
three or ten year bars to immigrating.

4.  Waiver of Interview

If the supporting immigrant visa petition is based on employment, most adjustment of status applications are adjudicated based on the forms and documentation provided without an
interview. However, all adjustment of status applications based on a familial relationship
or the diversity visa lottery are sent to the USCIS local office for an interview.

5.  Portability

If the adjustment of status application has been pending for 180 days or more, the applicant
can change positions, provided that s/he continues to be employed in the “same or similar 
occupation.” This recent law is a radical departure from the former immigration laws which
required individuals to remain in the same position until the green card was adjudicated, and
allows for flexibility in the event of terminations or transfers in employment.

6.  Concurrent Filing

Those individuals with a current visa number whose immigrant visa is pending may apply
for adjustment of status without waiting for the USCIS to adjudicate the immigrant visa
petition. This saves valuable time in processing, as individuals pursuing consular processing
of their green cards must await approval of the immigrant visa petition before the consular
process is instituted for the green card. However, if the immigrant visa petition is denied,
the adjustment of status application, and any associated EAD or advanced parole
applications are also denied at that juncture.

7.  Seventh Year Extensions of H-1B Status

Individuals who have a labor certification or a Form I-140 immigrant visa petition filed on
their behalf 365 days before reaching their sixth year cap in H-1B status may extend their
H-1B status in one-year increments until the USCIS adjudicates their adjustment of status applications. Individuals who pursue an immigrant visa through consular processing do not
have this option, and must leave the US at the end of their sixth year in H-1B status unless
they have obtained permanent resident status.

8.  Documentary Requirements

Those pursuing consular processing must obtain a police clearance (when available) from
every locality of the country of nationality or latest residence abroad since the age of 16, as
well as any other countries where the applicant has lived for at least one year. Adjustment of
status applicants instead provide criminal or arrest records (if any) and fingerprints which are
cross-checked against FBI and other government databases. Additionally, those individuals
who have served in a foreign military branch must obtain evidence of their military service
when applying for a green card through consular processing. This document is not required
for adjustment of status applicants.

9.  Attorney representation

In the event an interview associated with an adjustment of status application is scheduled,
attorney representation at the interview is permitted. In contrast, all consular processing cases 
require interviews and attorneys are not permitted to attend the interview with their clients.

10.  Denials/Requests for Evidence

Adjudication of an adjustment of status application is reviewable by the Administrative Appeals Office (AAO). If there is a refusal of an immigrant visa by a Consul abroad, it is more difficult to obtain review. Also, if the USCIS requests additional information/documentation while an AOS application is pending, the applicant can continue to renew the EAD and advance parole documents until the issues are resolved. However, if there is a problem at the Consulate, the applicant may be stranded outside the United States until the issues are resolved.

Consular Processing

Individuals may apply for permanent residence through the Consulate or Embassy in
their home country. The applicant must first submit the immigrant visa petition to the local
USCIS Service Center. Once the USCIS approves the case, it will send the approval notice
to the applicant, and then send the file to the National Visa Center (NVC). The NVC will
then instruct the applicant to pay the relevant fees within 2-4 weeks of receipt of the file
(if the visa number is current). Once the fees are received, the NVC instructs the applicant
to complete forms and send the supporting documents to the NVC, which it then forwards
to the Consulate abroad for processing. Some Consulates will schedule the appointment,
while other Consulates (approximately 35 worldwide) rely on the NVC to collect these last
remaining forms and documents and schedule the appointment.

In addition to the documents listed above for adjustment of status applicants, as previously mentioned, applicants who are applying for consular processing must submit a police
certificate for each locality in which they have lived since turning 16 years old and evidence
of any military service abroad. Some individuals will wait for months for their home countries governments to produce these documents.

Individuals usually pursue consular processing to benefit from traditionally faster processing
times. If the USCIS expeditiously forwards the approved immigrant visa petition to the
National Visa Center (NVC), a Consulate could schedule an immigrant visa appointment within
one year, depending upon the particular Consulate’s workload. If the applicant for an immigrant
visa is in possession of a valid nonimmigrant visa, and the nonimmigrant visa allows for dual
intent, the individual may travel freely while waiting for the visa appointment. Those applicants
in a visa status with strict non-immigrant intent, such as TN status, however, must be more
cautious with international travel, since they make a representation each time they use the
TN visa to enter the United States that they are working temporarily in the US and that they
have a residence abroad which they have no intention of abandoning. This representation
should not be made if the individual has a Form I-140 (immigrant visa) petition pending.

Copyright © 2009 Law Offices of Melissa Harms All rights reserved.
The above discussion is provided for informational purposes only and is not intended as legal advice nor does it create an
attorney-client relationship. Individuals should visit a licensed attorney to evaluate the legal circumstances surrounding their
situation and to receive appropriate legal advice.