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Adjustment of Status versus Consular Immigrant Visa Processing

The final stage of the permanent residence immigration process is either an application to adjust status to permanent residence filed with the USCIS or an application for an immigrant visa at a U.S. consulate overseas. Some applicants can only adjust status, those applying under ‘245(i)’, while others may only apply at a U.S. consulate, such as those who engaged in unauthorized employment. However, many have a choice, and this is to assist those individuals in making that choice.

Advantages of Adjustment of Status to Permanent Residence

  • With concurrent processing, adjustment of status may be quicker than consular immigrant visa processing.
  • If a child is near age 21, adjustment of status (especially concurrent processing) may protect the child better than consular immigrant visa processing.
  • In employment-based cases, there is usually no interview; there is always an interview on consular cases.
  • Consular cases require travel by the principal applicant and family members to their home country.  Adjustment of status does not require any international travel.
  • Attorneys can be present if an interview does occur on an adjustment of status application at the USCIS, but clients have no right to counsel at most U.S. consulates.
  • Police certificates from all countries where the foreign national lived for six months or more since age 16 are required in consular cases. They are not required in adjustment of status cases.
  • Employment-based adjustment applicants may change to a “same or similar” position with a different employer once their application is pending within 180 days.  This is known as “adjustment portability” and is not an option if the case is consular processed.

The adjustment applicant, and his spouse and children under age 21, can obtain employment authorization documents within 90 days of filing the adjustment of status. This eliminates the need to extend nonimmigrant status during the pendency of the adjustment application. It is not possible to obtain an employment authorization document during the pendency of the consular processing of an immigrant visa application.

  • There are procedures for appealing or renewing a denied application for adjustment of status. There are no such procedures for a denied immigrant visa application.
  • If there are USCIS delays in deciding an adjustment application, the foreign national is able to remain in the United States and continue working. If there are delays in the consular processing of an immigrant visa application following the interview, the foreign national may be stranded outside the United States until the problems are resolved.

Yet with all of these advantages of adjustment of status there are times when it may be advantageous to process an immigrant visa application at a U.S. consulate.

Advantages of Consular Immigrant Visa Processing

  • The biggest advantage of immigrant visa processing at a U.S. consulate is for those that want to avoid any interruption in their ability to travel in and out of the U.S., as well as for those who have spouse or children under 21 living in overseas.
  • Upon the filing of an adjustment of status application, with the exception of those maintaining H or L status, adjustment applicants must file for and obtain advance parole travel permission to leave the United States. Immigrant visa applicants are able to travel without restriction assuming that they have valid visas for travel.
  • An applicant for adjustment of status may need to maintain valid status during the pendency of the adjustment of status application. There is no such requirement for the immigrant visa applicant (however, if the immigrant visa applicant has 180 days of unlawful presence in the United States, she will be subject to a three-year bar to returning to the United States; 10 years if she had one year of unlawful presence).
  • If the family (spouse and children) of the foreign national are outside of the United States, it is often advantageous for the entire family to process their immigrant visa applications together at the U.S. Consulate.

With these factors in mind, the permanent residence applicant should be able to make an informed judgment regarding the venue for completion of his permanent residence case.