Time frames for adjustment or consular processing are important to employment-based immigrant visa applicants because the employment must usually continue until completion of the process. Although consular processing is the quicker of the two choices, consular processing may be started only after the I-140 is approved. Adjustment of status, by contrast, can be started concurrently with the I-140 filing. Accordingly, the total time to attainment of PR status may still be faster for concurrently filed I-140 and adjustment applicants than for I-140 applicants requesting consular processing.

The pros and cons of adjusting status in the United States versus consular processing abroad are outlined below.

Adjustment through BCIS

– must reside in the United States; place of application determined by residence of applicant
– BCIS is agency involved
– procedural rights of review/ appeal available
– priority date must be current to file I-485
– 3 year H-1B service commitment for shortage area J waivered physicians must be completed before filing I-485
– total time frame for I-485 approval: 18 to 30 months until PR status approved
– while I-485 is pending can get work permit and travel permission, thus, can avoid consular appointment to renew visa, I-129 extensions and related employer obligations
– time for work permit approval: approximately 90 days; valid for one year; renewable
– time for travel permission (advance parole): 90 days; valid for one year; renewable
– FBI fingerprint clearance and inter-agency name clearance required
– spouses and children in the United States can simultaneously apply for adjustment
– spouse and children over 14 who submit I-485s can also get work permit and travel permission
– 204(j) portability provision permits change of employment within same “occupational classification” without forfeiture of PR process

Analysis: greater process rights, greater predictability, avoids consular appointments and related clearances, longer time to PR status, work permit a big benefit to spouse and employee if H or L inconvenient or unavailable.

Consular Processing

– DOS is the agency involved
– must process in country of birth or foreign country of legal residence
– limited appeal/process rights; consular findings of fact unappealable
– Must maintain non-immigrant status (temporary visa) to stay and work in the United States while waiting for consular interview
– no interim work permit or travel permission available
– must return to home country for interview and medical exam at U.S. embassy
– interview scheduled on very short notice, requires immediate travel for individual and family
– minimum of two day stay in home country for medical/interview
– time frame from approval of I-140: approximately 3 to 9 months
– applicant must obtain police certificates from every country where applicant has lived for 12 months or more after age 16.
– security check clearance from DOS. The security check process is becoming increasingly arduous, especially for nationals of countries with suspected high terrorist activity.
– can start process before priority date is current but can't be interviewed until priority date current
– J waivered shortage area physicians can start consular processing before completing 3 year H service obligation
– risk of refusal can result in inadmissibility to the United States, unless parole or non-immigrant visa can be obtained

Analysis: quicker, little more dangerous, no work permit/travel permission benefits

Consular Processing Red Flags

The following are considerations when an individual may wish to avoid consular processing:

– immigration history of having changed status from B-2 to F-1 or H
– employment-based labor certification cases where the beneficiary has insufficient English language abilities for the job. Recent targets include nationals from China, Turkey, the Gulf states, and Iran.
– employment-based labor certification cases – must be prepared to discuss job and qualifications. Expect “pop quizzes” about the job, especially for computer industry-based jobs.
– 3 and 10 year bars: if individual has been unlawfully present in the U.S. for over 180 days, may be subject to the 3 or 10 year bar. If unsure, should get an advisory opinion in advance.
– multinational executives if prior foreign employer and U.S. employer no longer have same qualifying affiliation or have ceased doing business
– applicants relying on “green card portability” of INA section 204(j) to change employers before completion of PR process

The traditional advantage to consular processing is that it is a quicker process once the I-140 is approved. However, the availability of concurrent filing of the I-140 and adjustment erodes or even eclipses the consular processing time advantage. Further, since the terrorist attacks of September 11, 2001, more rigorous security checks and increasing numbers of interviews for nonimmigrant visa applications have resulted in serious delays at most consular posts. Being stuck outside the United States during a protracted clearance or to resolve a fact issue is less convenient than continuing employment in the United States while such an issue is resolved. Consequently, all clients should check the current procedures of the applicable consulate before leaving the United States if they require consular services.