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September 13, 2022
Adjustment of Status inside United States vs. Consular Processing for Work-Based Immigration

📝Applicants for employment-based Green Card can apply for lawful permanent residence in one of two ways: Adjustment of Status inside United States, where the applicant submits the petitions while remaining in the U.S and under USCIS jurisdiction, or Consular Processing, where the applicant applies for an immigrant visa in the home country or anywhere abroad and is under Consular power for the final decision. The difference is who makes the final decision in approval – with Adjustment of Status it’s USCIS and the officer inside United States. With Consular Processing, it’s the US Consul.

Historically, the rates of approval for every visa category are higher inside United States than in consulates.

👉Those in the process of submitting the I-140 Immigrant Worker Petition, both the Employer and the Worker should consider carefully which option they will select. This choice will determine the waiting time and the chances of success in this process.

Applicants with already approved I-140 petitions may also wish to reconsider their original selection once again before applying for the final stage of the Green Card process, as current processing times and personal factors may have changed since filing the immigrant petition.

☝This article will outline the steps involved in adjustment of status and consular processing and provide some information about the positives and negatives of each pathway to lawful permanent residence. We want to make this process easier and more transparent to everyone interested in PERM, National Interest Waiver Petitions, EB-1 (Priority Workers and Extraordinary Ability Workers), EB-2 (Professionals Holding Advanced Degrees and Persons of Exceptional Ability) , EB-3 (Skilled Workers, Professionals, and Unskilled Workers), and EB-4 (Special Immigrants like Religious Workers, US Government Workers, Doctors, and Iraqi and Afghgan translators and persons who helped our government).

The first place where you have to pick your path for processing is on the I-140 Form itself.  In Part 4, Questions 1 and 2 of the I-140 Petition, the applicant must clearly state if he or she will be applying in a Consulate abroad and designate the specific consulate. 

💪However, at Shepelsky Law Group, we have been able to change this selection at various stages of the process based on the Employer’s and Worker’s needs.

There is always an opportunity to change your initial pick after the fact, down the line, and choose to switch to the other process. This is a serious process and should not be taken lightly, but the choice is available and a change of this selection is also available in the right circumstances.

❓The primary concern of most immigrants is: “Which is the fastest way to my future green card status?”  Here, we outline the process and point out to you the sharp turns in this road.

Also, keep in mind that some categories are open to self-filing where you can sponsor yourself for a work green card.

Adjustment of Status – When your Process is inside the US

Steps:

🔸Step 1: This step is the same in both Consular Processing and Adjustment of Status pathways.

Here, the Employer files USCIS Form I-140, Immigrant Petition for Alien Worker with USCIS, but checks off in Part 4 of the I-140 Petition requesting Adjustment of Status.

🔸Step 2: If a visa number is available in the specific employment category, the immigrant worker can concurrently file Form I-485, Application to Register Permanent Residence or Adjust Status in the same package with the I-140 Petition, and the two forms will be processed together.   If there is a backlog in visas available and there is a wait, then the I-140 is submitted alone.  When the visa becomes available in the assigned visa category, the immigrant worker will send in his/her I-485 Application later citing the underlying I-140 Petition specifically by USCIS Receipt Number. The worker is assigned an Alien Number when the I-140 petition is approved.

🔸Step 3: The applicant applies to adjust status with USCIS, and sends in a copy of their I-140 Petition’s Approval Notice (or filed concurrently with the I-140), a sealed medical exam form signed and filled out by the doctor/civil surgeon, and other documentation of eligibility to prove the eligibility for a green card: proofs of identity and maintenance of U.S. status.

🔸Step 4: After the Adjustment application is filed, the applicant is scheduled to attend an immigration biometrics appointment (fingerprints, photo and checks of the applicant’s signature) at a local USCIS Application Support Center assigned according to the applicant’s address in US.

🔸Step 5:  Interview.  Applicant is scheduled for an Adjustment of Status interview. This is not always the case as many Immigrant Workers are approved for permanent residence on papers alone if you provided everything USCIS needs to show your eligibility (maintained status, no arrests, working in the same filed) in your I-485 packet.

🔸Step 6.  The decision (approval or denial) of the I-485 for Adjustment of Status application arrives by mail (following approval of I-140, if filed separately or together).

🔸Step 7: USCIS produces and then mails the Permanent Resident Card to the applicant within 30 days of the I-485 decision. USCIS will provide US Postal Service Tracking information to allow for tracking of the green card as it travels to you by mail.

Benefits of Adjustment of Status:

◽ It’s often quicker.

◽ You can work legally in US as a pending permanent residence applicant with an Employment Authorization and get a Social Security Number assigned to you while you wait for the Green Card to be approved.

◽ You can file for an Advance Parole when filing for your I-485 Adjustment application and use it to travel outside of United States and return safely to US while awaiting the I-140 and I-485 decisions.

◽ Chance of denial inside USCIS is much lower than when the Consular officer makes the decision of what to do with you.

◽ If you ever had a lapsed status – inside the U.S. you have a chance to get the Work Green Card anyway, but abroad – the Consular workers will not give you a second chance.

◽ USCIS decisions may be appealed; applicant (and any family members also applying for adjustment) may be able to remain in the US until a final decision is reached.

◽ Inside the US, you have a right to have an attorney prepare you and attend the interview with you – raising your chances of approval even higher. We attend many Employment Green Card interviews at Shepelsky Law Group and win, win, win!

◽ Only one government department (USCIS) is involved, reducing chance for loss of your file, reducing governmental red tape, intra-departmental or international complications. You may get approved without ever going anywhere in person!

Green card portability: Adjustment of Status applicants whose I-485 applications have been pending for 180 days or more can change jobs or employers, as long as the new job is in the “same or similar occupational classification” as on the original labor certification and/or I-140 petition. This permits transfer within the employer’s organization and the option of continuing a green card application with a new employer in the event of a layoff.

7th year H-1B extension when filed for Adjustment of Status: Adjustment of Status applicants who have a labor certification or I-140 petition filed one year or more prior to their H-1B six-year maximum can extend H-1B status in one year or three year increments until adjudication of the I-485 is complete. (The extensions would end if the labor certification or I-140 were denied and this is not appealed).

Concurrent filing option: The USCIS now allows applicants to file the I-140 petition and I-485 application together in the same packet (where the right employment category visa number is available).  This saves a lot of time!  

Disadvantages of Adjustment of Status:

◾ You may get a USCIS Officer that does not understand or fails to apply the right laws to the process of Employment-based green card – it happens!

◾ Your immigration or criminal violations may cause you to get denied.

◾ Anything that you ever listed in immigration forms filed abroad for a nonimmigrant visa in the past may come back and resurface at the interview causing you a charge with fraud or misrepresentation.

Consular Processing – Immigrant Visa received in a US Consular Post Abroad

Steps:

🔹Step 1: Form I-140, Immigrant Petition for Alien Worker, is filed with USCIS, requesting consular processing in Part 4 of the form.

🔹Step 2: USCIS processes the case, assigns USCIS Receipt Number. You do not get any biometrics.

🔹Step 3: Your I-140 Petition is approved. The approval notice arrives by mail.

🔹Step 4. Upon approval of the I-140 Petition, USCIS sends notice of approval to the State Department’s National Visa Center (NVC). This is a totally separate government agency. The NVC acts like an intermediary collection of documents service between the USCIS and the Consular Post.   

🔹Step 5: NVC assigns a new NVC case number to your case and designates the specific Consular Post where you will be interviewing.

🔹Step 6. If a visa number is available for the worker in the next fiscal year (varies by country of the worker’s nationality and category of immigrant visa), NVC sends out an Invoice to pay for Immigrant Visa and to upload civil documents into the online collection system CEAC.

🔹Step 7: Payment of NVC fee.

🔹Step 8. Once payment is processed, NVC will forward an instruction packet (formerly called Packet 3) with forms and list of supporting documents to be submitted by applicant via CEAC, all documents to be uploaded, including the DS-260 Online Immigrant Visa Application and all required civil documents.  

🔹Step 9:   Upon review of all the uploaded forms and civil documents, the NVC sends out an email letter to the Employer, applicant and attorney that all the documents are in order and that the case will be forwarded to the Consulate for interview scheduling.

🔹Step 10: The consulate schedules the Immigrant Visa interview and sends the worker applicant further instructions, information on the required medical exam, and an appointment for interview.  

🔹Step 11: Applicant completes the medical exam overseas, vaccinations are approved, he/she pays consular fees, and prepares for Immigrant Visa interview.

🔹Step 12: Applicant attends the Consular Interview with spouse and all derivative children under 21 who will travel with him/her to USA. 

🔹Step 13:  Once the interview is completed, if the consulate approves the immigrant visas. Consular post keeps the passports of the family and the applicant is sent home and provided instructions when to pick up the family’s passports at a pickup location designated by the Consulate.  The applicant and his dependents family members will be returned their passports within a week or two with their new U.S. Immigrant Visas glued inside (called FOILs), together with US Immigrant Fee handouts with instructions how to pay the U.S. Immigrant Fee for each family member, and their VISA packets. This payment triggers the printing of a green card later, after your arrival in the US.

🔹Step 14: Applicant must pay the U.S. Immigrant Fees for himself and family members here https://my.uscis.gov/uscis-immigrant-fee/enter-data. They must take their Visa packets with them when travelling to USA, and must give them over to the US Customs and Border Patrol (“CBP”) Officers inside the airport document check post upon arrival to USA.

🔹Step 15. Applicant and family travel to USA, give CBP officers in the airport their visa packets and receive I-551 Lawful Permanent Residence status stamps in their passports. This will be your temporary green cards until the actual plastic green cards arrive by mail.   USCIS takes additional photo and fingerprints for production of the final green card. CBP will process your visa packets and register you as new Lawful Permanent Residents (Green Card holders) in America.

Benefits of Consular Processing:

🔺 May be good for applicants who want to process at the same time as family members who are currently living abroad.

🔺 Gives applicant more time to prepare for immigrating to United States and organizing their affairs as Immigrant Visas are usually good for several months after issuance (although limited by the purpose of immediately starting work for the Employer sponsor).

Disadvantages of Consular Processing:

🔻 You may be denied for immigration violations, lapses in status, extensions of nonimmigrant status done inside US in the past, arrests, misstating information in your forms, lying in your forms (fraud and misrepresentation), forgetting something at the interview, answering something wrong at the interview, or even if the Consular officer does not like you or your attitude at the Interview and uses their discretion to deny you.

🔻 Basically, the Consular officer will be interviewing you all about your I-140 Petition and your Immigrant Visa together.

🔻 You may be unprepared to answer questions about your job in USA (details about your intended employment).

🔻 There is no appeal of Immigrant Visa denials and there is no administrative review process, unlike the denials inside the US.

🔻 No employment authorization is available while application is pending, so family members applying with principal applicant cannot work. If applicant uses up available time in H or L status, s/he must leave the U.S. and complete consular processing before returning.

🔻 Applicant must get police clearance from each country of residence since age 16. Sometimes, it is super hard to obtain these police clearances.

🔻 There is ALWAYS AN in-person interview by consular officer.

🔻 Many consulates will not allow an attorney to attend the interview.

🔻 Your chance of denial is much higher at the Consulate than with USCIS.

🔻 Processing times and success rates vary from country to country. High admission/flight/fraud posts may require additional documentation/verification; immigration may be subject to political climates and local attitudes.

🔻 Availability of appointments depends on the individual consulate.

🔻 Applicants may only consular process in their country of birth, country of chargeability, or another country of citizenship or other place of permanent residence (as defined by the consulate).

🔻 In rare cases, may require multiple trips abroad to complete process. Not everything can be resolved in one trip for many applicants.

🔻 All family members are required to apply at consulate, and the interviews are scheduled on a date that works for the consulate, but may not work for you and family members. However, there is a chance to reschedule. Still, you may be waiting a long time for a reschedule.

🔻 Consular processing is generally slower than Adjustment of Status.

Call us today to begin your Employment-based Immigration to United States!

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Shepelsky Law Group

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