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Adjustment of Status


Overview of the adjustment of status process: Adjustment of status is a process that permits certain people in the United States to apply for lawful permanent resident ("green card") status without having to go abroad. Not everyone qualifies for this procedure. Those that do must apply with an office of the USCIS and all further processing will be done by that agency.

Who May Apply to Become a Lawful Permanent Resident While in the United States?

You may be eligible to apply for adjustment to permanent resident status if you are already in the United States and if one or more of the following categories apply to you.

Family Member:

You are the spouse, parent, unmarried child under age 21, the unmarried son or daughter over age 21, the married son or daughter, or the brother or sister of a United States citizen and have a visa petition approved in your behalf.

You are the spouse or unmarried son or daughter of any age of a lawful permanent resident and you have a family-based visa petition approved in your behalf.

Employment:

You are an alien who has an approved visa petition filed in your behalf by a United States employer. For more information on how an employee can become an immigrant, please see How Do I Apply for Immigrant Status Based on Employment? In addition, please see our list of “How Do I” pages which provide information on bringing relatives (Parents, Spouses, Siblings, Children) to live in the United States.

The following classes of people shall not receive adjustment of status:

(1) alien crewmen;

(2) anyone (other than "immediate relatives" as that term is specially defined), who continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States;

(3) any alien admitted in transit without visa under section 212(d)(4)(C);

(4) an alien (other than an immediate relative) who was admitted as a non-immigrant visitor under the visa waiver program;

(5) aliens who are deportable under section;

(6) any alien who seeks adjustment of status to that of an immigrant through an employment based preference and is not in a lawful non-immigrant status; or

(7) any alien who was employed while the alien was an unauthorized alien, or who has otherwise violated the terms of a nonimmigrant visa.

Visa Number:

If you are a Family- or Employment-based applicant, you must have an immigrant visa number available from the State Department unless you are in a category that is exempt from numerical limitations. Immediate relatives of United States citizens are exempt from this requirement. Immediate relatives of U.S. citizens are parents, spouses, and unmarried children under 21. (For instance, you can apply to adjust to permanent resident status at the same time that your U.S. citizen daughter files an application for you to become an immigrant.)

Other immigrant categories that are exempt from numerical limitations and do not need a visa number include special immigrant juvenile and special immigrant military petitions. For more information on immigrant visa numbers, see How Do I Get an Immigrant Visa Number? Also see How Do I Bring My Spouse to the United States to Live? How Do I Bring My Child to the United States to Live? and How Do I Bring My Parents to the United States to Live? USCIS Form I-360 provides more information on special immigrant juvenile and special immigrant military petitions.

For the unmarried son or daughter (over 21 years of age) of a US Citizen, brother or sister of a US Citizen, or the spouse or children of lawful permanent residents, visa numbers are limited by law every year. This means that even if the USCIS approves an immigrant visa petition for you, you may not get an immigrant visa number immediately. In some cases, several years could pass between the time the USCIS approves your immigrant visa petition and the State Department gives you an immigrant visa number. For more information on visa numbers, please see How Do I Get an Immigrant Visa Number?

Fiance(e):

You were a fiancé who was admitted to the United States on a K-1 visa and then married the U.S. citizen who applied for the K-1 visa for you. (If you married the U.S. citizen but not within the 90-day time limit, your spouse also must now file USCIS Form I-130, Petition for Alien Relative ). Your unmarried, minor children are also eligible for adjustment of status. See How Do I Bring My Fiancé to the United States? for more information. If you did not marry the U.S. citizen who filed the K-1 petition in your behalf, or if you married another U.S. citizen or lawful permanent resident, you are not eligible to adjust status in the United States.

Asylee:

You are an asylee or refugee who has been in the United States for at least a year after being given asylum or refugee status and still qualify for asylum or refugee status. See Asylee or Refugee Seeking Lawful Permanent Resident (LPR) Status, How Do I Apply for Asylum?, and How Do I Get Resettled in the United States as a Refugee? for more information.

Diversity Visa:

You received notice from the Department of State that you have won a visa in the Diversity Visa Lottery

Cuban Citizen:

You are a Cuban citizen or native who has been in the U.S. for at least a year after being inspected, admitted, or paroled into the United States. Your spouse and children who are residing with you in the United States may also be eligible for adjustment of status.

U.S. Resident Since Before 01/01/72:

You have been a continuous resident of the United States since before January 1, 1972. See 8 CFR 249.2(a), under “Jurisdiction.”
Other Nationality-Based Programs

Parent’s LPR Status

Your parent became a lawful permanent resident after you were born. You may be eligible to receive following-to-join benefits if you are the unmarried child under age 21 of the lawful permanent resident. In these cases, you may apply to adjust to permanent resident status at the same time that your parent applies for following-to-join benefits for you. For more information, see How Do I Bring My Children to the United States to Live?

Spouse’s LPR Status

Your spouse became a lawful permanent resident after you were married. You may be eligible to receive following-to-join benefits. In these cases, you may apply to adjust to permanent resident status at the same time that your spouse applies for following-to-join benefits for you. For more information, see How Do I Bring My Spouse to the United States to Live?

Otherwise Eligible Immediate Relatives:

If "otherwise eligible" to immigrate to the U.S., immediate relatives may adjust status to LPR (get a "green card") in the United States even if they may have done any of the following:

  • worked without permission,
  • remained in the U.S. past the period of lawful admission (e.g., past the expiration date on your I-94) and filed for adjustment of status while in an unlawful status because of that,
  • failed otherwise to maintain lawful status and with the proper immigration documentation, or
  • have been admitted as a visitor without a visa under sections 212(l) or 217 of the Act (which are the 15-day admission under the Guam visa waiver program and the 90-day admission under the Visa Waiver Program, respectively). Please note: If a person came into the U.S. illegally, that person is barred from adjusting their status to LPR (cannot obtain a green card) even if he or she marries a U.S. citizen or otherwise becomes an immediate relative. An immediate relative must meet the eligibility requirement of being “inspected and admitted or paroled into the United States.”

The following classes of people shall not receive adjustment of status:

  • You entered the U.S. while you were in transit to another country without obtaining a visa.
  • You entered the U.S. while you were a nonimmigrant crewman.
  • You were not admitted or paroled into the United States after being inspected by a U.S. Immigration inspector.
  • You are employed in the United States without USCIS authorization or you are no longer legally in the country (except through no fault of your own or for some technical reason). This rule does not apply to you if:
    • You are the immediate relative of a U.S. citizen (parent, spouse, or unmarried child under 21 years old).
  • Certain foreign medical graduates, international organization employees and family members.
  • You are a J-1 or J-2 exchange visitor who must comply with the two-year foreign residence requirement, and you have not met or been granted a waiver for this requirement.
  • You have an A (diplomatic status), E (treaty trader or investor), or G (representative to international organization) nonimmigrant status, or have an occupation that would allow you have this status. This rule will not apply to you if you complete USCIS Form I-508 (I-508F for French nationals) to waive diplomatic rights, privileges and immunities. If you are an A or G nonimmigrant, you must also submit USCIS Form I-566.
  • You were admitted to Guam as a visitor under the Guam Visa Waiver Program. (This does not apply to immediate relatives.)
  • You were admitted into the United States as a visitor under the Visa Waiver Program. (This rule does not apply to you if you are the immediate relative of a U.S. citizen (parent, spouse, or unmarried child under 21).)
  • You are already a conditional permanent resident.
  • You were admitted as a K-1 fiancé but did not marry the U.S. citizen who filed the petition for you. Or, you were admitted as the K-2 child of a fiancé and your parent did not marry the U.S. citizen who filed the petition for you.


How Do I Benefit From Section 245(i)?

The ABCs of Immigration – Consular Processing Versus Adjustment of Status
by Greg Siskind and Amy Ballentine

There are two methods of securing permanent residence in the US once a person is approved for immigration. One is called consular processing; the other is adjustment of status. As the name implies, in consular processing the applicant applies for and processes an immigrant visa at a US consulate abroad, most often in their home country. Adjustment of status is the process by which a person already in the US has their immigration status adjusted to that of a permanent resident. The applicant determines the desired method of processing at the time the initial petition for classification as an immigrant is filed.
Consular Processing

In consular processing, the INS forwards the approved immigrant petition to the National Visa Center (NVC), which is part of the State Department. When an immigrant visa number becomes available, the NVC generates a collection of documents known as Packet 3. Packet 3 includes the State Department form for applying for an immigrant visa, an affidavit of support, which must be filed in all family cases and in some employment-based cases, and instructions on the process.

The applicant must complete the forms and return them to the appropriate consulate. The applicant must also gather documentation, including a passport, birth certificates, police certificates, court and prison records if relevant, military records if relevant, and marriage and divorce certificates for each person immigrating. Upon receipt of the forms and notification that the applicant has obtained all necessary documentation, the consulate will issue what is known as Packet 4. Packet 4 includes the time for the visa interview appointment, as well as information on obtaining the required medical examination.

If the application is approved, the person will be issued an immigrant visa, which is good for only six months. If the person does not enter the US within that period of time, the visa will expire and the opportunity to immigrate will be lost.

If the application is denied, the principle consular officer at the post reviews it. If the officer desires, he can get a second opinion from the State Department. However, if, after this point, the denial is upheld, there is no recourse for the applicant.

Consular processing was once the only way to obtain an immigrant visa, as there was no adjustment of status process. When adjustment of status was created, it became tremendously popular, due in large part to the reentry bars that were created in 1996. However, as INS backlogs have grown longer and longer, more and more people are looking at consular processing to speed the process.

Adjustment of Status

A person applies for adjustment of status with the INS from within the US. Along with the adjustment form, results of a medical examination, an affidavit of support, if required, evidence of the approval for immigration and a copy of the applicant’s passport must be submitted. Evidence of any familial relationships must also be submitted, if family members are seeking to adjust their status with the principle applicant.

If the applicant wishes to work or travel abroad while the adjustment of status application is pending, additional forms must be filed. A person is work and travel authorized for only one year at a time, so in many cases, because of INS processing delays, the applicant must renew these documents.

Not all adjustment of status applicants are interviewed, although the law provides that any adjustment applicant may be interviewed. Interviews are always conducted in marriage cases, but are less frequent in other family relationships. Interviews are quite rare in employment-based cases.

After approval for adjustment of status, it takes some months before the physical green card is obtained. If the approval follows an interview, the INS will stamp the applicant’s passport with an indication that they are a US permanent resident. If there is no interview, the applicant will receive a notice that the application has been approved, which they can take to a local INS office and obtain the stamp. A few months later, they will receive the green card.

Choosing Between Consular Processing and Adjusting Status

Deciding whether to pursue consular processing or adjusting status can be a difficult choice. The chief advantage of consular processing is speed. Consular processing is generally much faster than adjusting status. Six to eight months is not unusual compared to one to three years at various INS offices around the US.

Adjusting status has several advantages. First, processing can take place with no traveling abroad. Also, the applicant can work while waiting for processing to take place. Finally, processing in the US means that potential bars on reentry can be avoided that might prevent consular processing.

The question often arises over whether it is possible to pursue BOTH consular processing and adjustment of status simultaneously. The question is controversial. There is no statutory bar to processing both ways, but the INS takes the position that if it learns that one is pursuing both consular processing and adjustment of status at the same time, it will consider an adjustment application abandoned. This would typically arise when someone is in the process of adjusting status and files a request with the INS to cable an approval notice to a consulate to initiate consular processing. However, the issue will typically not arise in the reverse circumstances – when one begins with consular processing and then decides to pursue adjustment of status.

 

Adjustment of Status vs. Consular Processing

Upon approval of an immigrant visa petition, a foreign national (FN) and dependent family members will gain the ability to apply for permanent resident status (i.e., for the "green card") provided that an immigrant visa number is available for the country category within the preference group. There are two procedures available for obtaining permanent residence: adjustment to permanent residence status in the United States, and consular processing of application for permanent residence abroad. This memo is intended to orient FNs to these two procedures so that they can make an informed decision whether to adjust status here or to immigrant visa process at a United States consulate or embassy in the country of last residence.

We begin this overview by detailing the procedures for becoming a permanent resident of the United States. When we file an immigrant visa petition we must indicate whether a FN wants to adjust to Permanent Residence here in the United States or process for an immigrant visa through a U.S. Consulate in their home country.

If a FN opts to file an adjustment application in the United States, our office will compile the draft forms which must be filled out by the FN. We also request additional required information such as a copy of birth and marriage certificates (if applicable), as well as all documentary evidence indicating valid status in the United States. All this information is sent in a packet to the CIS (formerly the INS) in order to prove that each FN is who they say they are, and that their presence and employment in the US has been legitimate. We may also simultaneously file applications requesting travel and employment permission, which will allow a FN and dependant family members (spouse and children) to return to the United States after travel abroad and work authorization during the processing of the adjustment application. The average processing time for an adjustment application is generally between 10-18 months (longer in some jurisdictions), though a FN can obtain the employment and travel authorization within three months of filing the applications.

Processing times do tend to vary. Whereas we had expected to see some shortening of adjustment processing times as a result of a November 1999 INS (now CIS) directive, we now fear a lengthening of processing times owing to certain additional background security checks. Once the adjustment application is approved, a FN will be able to obtain a permanent residence stamp in their passport as temporary evidence of this status until the "green card" arrives in the mail.

If a FN decides that he/she wants to visa process at a US Embassy or Consulate overseas, the procedure is as follows. We must first await receipt of a packet of blank forms (Packet 3) from the National Visa Center in New Hampshire which must be filled out by the FN. These forms request biographical information and are not very different from the forms used in the Adjustment of Status context. Once the forms are completed and originals have been signed, that packet is sent to the Embassy or Consulate (for Canadians, it is sent back to the National Visa Center). Then there is a waiting period, the length of which varies from country to country. During this waiting period, the FN may remain in the US only if he/she has a basis for stay and work (for example, H-1B authorization). Otherwise, the FN must return to his/her home country to await further instructions from the consulate/embassy. About one month before the appointment at the consulate or embassy, another packet will be sent to the FN from that office (Packet 4). This packet contains the notice of interview date, information about where to have the medical examination performed (in that country, not in the United States) and other additional materials. At the appointment, the FN must bring immediate family members (spouse and children) who will also become permanent residents. After the appointment, assuming the application for permanent residence is approved, the FN will receive a packet which, upon presentation to the U.S. Immigration Inspector upon reentry to this country, will finalize the application for permanent resident status as memorialized through a stamp (Temporary I-551) in their passport. The FN will receive a "green card" in the mail at their designated U.S. address.

Each of these competing processing pathways has its own advantages and disadvantages. As a general observation, most of our clients prefer the Adjustment of Status process over Immigrant Visa Processing, for a variety of reasons. Perhaps one of the most significant advantages of adjustment of status is the ability to obtain employment and travel authorization for dependent family members while still in the US. Usually, a FN’s dependents can obtain this authorization within three months of filing the adjustment application. An additional advantage in the adjustment context is the convenience of being able to work and wait in the United States throughout the processing of the application, even if the temporary, nonimmigrant visa status has expired. Also, with adjustment, the FN is able to address any discrepancies or problems during the processing of the adjustment application by submitting additional documentation, whereas in consular processing, the FN must explain any inconsistencies at the personal interview.

Perhaps the single biggest consideration is a trade-off between the relative ease and cost savings of going through the adjustment of status process here in the United States as opposed to consular processing which, while inconvenient, disruptive, and expensive, can generally be accomplished in a relatively shorter period of time. This could be of major significance in situations in which a child may "age out" (i.e., attain the age of 21 years) or owing to other considerations which require a shortened adjudication time.

A FN may be ineligible or uninterested in adjusting status. Ineligibility to adjust status may stem from various reasons, including: being in unlawful immigration status on the date of filing the adjustment application, invalid admission to the United States, violating the terms of the nonimmigrant status, or, being in unlawful status in the U.S. for a period of time which, in the aggregate, exceeds 180 days (though there are some exceptions to ineligibility to adjust).

Alternatively, a FN may consider that the adjustment process is extremely lengthy, or, if he/she is the recipient of an employment-based petition, the FN may want to become a permanent resident as soon as possible to be free to obtain new employment if desired. But before making the decision to consular process, the FN should understand the advantages and disadvantages of that path to permanent residence.

The main advantage of visa processing abroad is the following: it can be considerably faster than adjustment depending on the consulate/embassy. This is especially helpful if the FN has a child that will "age-out" soon (that is about to turn 21—rendering him/her unable to adjust derivative of an applicant parent) or is the beneficiary of an employment-based petition and the FN wants to be able to work for another employer as soon as possible. In addition, changes in employment, such as location of job, salary, continued existence of employer, do not have as great an impact in consular processing due to the relative speed of processing as compared with adjustment.

Consular processing contains several distinct disadvantages, however, which lead us to avoid it in all but the most clear-cut and problem-free cases. Some of the potential problems associated with consular processing are mere inconveniences. But others can lead to long-term difficulties which must be seriously considered such as unlawful presence in the U.S. for over 6 months after April 1, 1997. This can trigger 3 or 10 year bars against return to the US. So, leaving the US to consular process abroad could subject an affected individual to this potential risk. Additionally, it is often viewed as an inconvenience to consular process since the FN needs to physically travel to the foreign processing post. Also, he/she must take additional affirmative steps to obtain certain required information - for example, obtaining police clearances from every country the FN has spent more than 6 months in since the age of 16 (in adjustment, the security clearance is handled by the FBI after fingerprints have been taken) and scheduling an appointment for medical examination with the recommended physician in the home country. Furthermore, the FN’s legal rights are somewhat more limited at the consulate than at the CIS. For example, in consular processing there is no right to counsel. Plus, if the consular officer denies the application at the consulate or embassy, the FN has no right to judicial review of that denial (though the FN is entitled to know the legal basis for the decision). Finally, if there are any unforeseen problems, there is the possibility that the FN will be required to remain in their home country until the problems are straightened out.

As suggested above, there are relative advantages and disadvantages to these two application processes. If the FN is single, (or married but not interested in employment authorization for dependents), has a valid nonimmigrant visa which allows him/her to work in the US during the potentially lengthy waiting period between issuance of Packets 3 and 4, and is from a country that 1) does not have a significant backlog of applications waiting at the consulate/embassy, and 2) is not considered to have a high incidence of fraudulent documentation, the FN may want to consider consular processing. Otherwise, adjustment of status is probably the best alternative. However, the choice is obviously up to the FN.

We trust that this outline has clarified some of the issues regarding adjustment of status and consular processing, and will help FNs make decisions as to when the time is appropriate. If there are questions about the information contained in this letter, please feel free to contact us, and we would be happy to discuss specific issues in greater detail.

United States immigration regulations, procedures, and processing times are always changing. Important decisions have to be made by applicants desiring to obtain permanent resident status in light of such changes. The purpose of this memo is to provide recent information regarding changes in the process so that those in the process of becoming permanent residents can make an informed decision based on the available options. Specifically, the two options are: filing for adjustment of status in the U.S. through the U.S. Citizenship and Immigration Services (USCIS or Service) vs. filing for an immigrant visa through a U.S. Department of State (DOS) Consulate or Embassy abroad.

When the Form I-l40 employment-based immigrant visa petition is submitted to the USCIS Service Center having jurisdiction over 7the intended area of employment, the petitioner must indicate whether the beneficiary will apply for “consular processing” at an American Consulate overseas for an immigrant visa or will apply for adjustment of status (AOS or I-485) to permanent residence with the USCIS. If I-485 is selected, the beneficiary of the I-140 has the option of “concurrent filing” of the I-140 and I-485. Concurrent filing can involve simultaneous filing of the I-140 and the I-485, or initial filing of the I-140, then filing of the I-485 while the I-140 is still pending. Our policy on all I-140 filings where the beneficiary does not choose “concurrent filing” is to request that USCIS send notice of the approval to the National Visa Center (NVC): this allows the beneficiary to choose whether to apply for the AOS or consular processing after the I-140 has been approved.



A.
Adjustment of Status - The Advantages

A1.
Convenience. Since the application is filed by mail to the USCIS Service Center having jurisdiction over the alien's place of residence, there is no need to travel long distances and to incur the inconvenience and expense of an interview abroad at an American Consulate.

A2.
Waiver of interview. A small percentage of all employment-based applications for adjustment of status are returned to the local USCIS district offices for interviews to ensure proper quality control. Otherwise the interview requirement is usually waived, and the Service will simply adjudicate the application based upon the forms and supporting documentation which have been furnished. All family-based and diversity visa (lottery) applications are interviewed.

A3.
Employment Authorization for principal, as well as dependent family members. Adjustment applicants can apply for an Employment Authorization Document (EAD) concurrently with, or after filing of the AOS application. EAD applications involve processing times of approximately 90 days and are valid for a period of one year. H/L/O visa holders have the option of filing for extension of nonimmigrant work authorization instead of, or in addition to, filing for an EAD. The advantages to doing so include longer work authorization validity periods, and maintenance of nonimmigrant status in the unlikely event the AOS is denied. Our general office policy is to encourage filing of an EAD concurrently with the AOS application given its lengthy processing time, in the event it is needed at a later point. Not only principal AOS applicants but their dependents may apply for EADs. Therefore, H-4, O-3, and TD dependent family members, who were prohibited from engaging in employment in the United States, may apply for employment authorization as AOS applicants. EADs provide an essentially unrestricted right to engage in employment or to be self-employed. EADs may be extended in increments of one year until the AOS application is adjudicated.

A4.
Permission to travel (advance parole authorization). All applicants for AOS may apply to the USCIS Service Center for permission to depart the United States temporarily after the adjustment application has been accepted for processing. It has been taking 90+ days to complete the processing of advance parole applications. The AOS applicant cannot depart the United States while the advance parole is pending without being deemed to have abandoned the adjustment application. However, the local USCIS district offices do retain jurisdiction to adjudicate advance parole applications for truly emergency and unforeseen reasons (i.e., sudden serious illness or death of an immediate family member). USCIS regulations which became effective on July l, l999 permit AOS applicants who hold valid, multiple entry H/L visas to travel on those visas without the need to apply for advance parole authorization, provided that they do not violate their status as H-1B or L-1 nonimmigrants (this means that they must not have actually used an EAD card to accept employment other than with their H-l/L-1 employer, or stopped working for that employer), and provided they present upon entry to the U.S. the original AOS I-485 Receipt Notice A similar rule applies to dependent AOS applicants: they cannot have actually used an EAD card to accept employment in order to continue to use their H-4/L-2 visas, together with their original I-485 Receipt Notice, to travel. Note that other nonimmigrant visa holders, e.g. TNs and O-1s are excluded from this exception and are considered to abandon their adjustment applications if they use their nonimmigrant visas to travel.

A5.
Portability. On October 17, 2000, the President signed into law the American Competitiveness in the 21st Century Act (AC-21). This change in immigration law creates another advantage to filing for adjustment of status rather than consular processing. Under AC-21, Section 106(c), if the AOS application has been pending for 180 days or more, the AOS applicant is permitted to change jobs with the same employer, or to switch to another entirely different employer as well as geographic location, provided that s/he continues to be employed in the “same or similar occupation.” This is a radical departure from existing rules and allows great flexibility to adjustment applicants. USCIS does expect to be provided with notification of any change of employment and a description of how that change in employment is in compliance with AC21 in that it is within the “same or similar occupation”.

A6.
Police certificates not required. If you choose consular processing, you have to obtain police certificates, in countries where the Department of State (DOS)e considers them available, from every locality of the country of your nationality or latest residence abroad where you lived since attaining the age of 16. If you opt for consular processing, you will also need to obtain police certificates from all other countries where you have lived for at least one year. AOS applicants instead provide their fingerprints for FBI and related agency processing, as well as arrest or conviction records if any.

A7.
Attorney can be present if Interview is scheduled. In the event of an interview at a local USCIS office, an attorney from our office can be present at the interview. In contrast, an attorney will not be present at the immigrant visa interview if you choose consular processing.

A8.
If something goes wrong. If there is a problem with an adjustment application, e.g. it is denied, we can appeal the decision or seek some other administrative relief. If there is a refusal of an immigrant visa by a Consul abroad, it is more difficult to obtain review. Also, if there is a processing delay while additional information/documentation is sought while an AOS application is pending, the applicant can continue to renew your EAD and advance parole documents until the issues are resolved. In contrast, if there is a problem at the Consulate, the applicant may be stranded outside the United States until the issues are resolved.

A9.
Potential job flexibility for concurrent filings. In concurrent filing cases, if an employee is laid off or employment is otherwise terminated, or if the employee expects to be transferred to another, but similar, position (e.g., a promotion or change in job location) with the same employer, concurrent filing might protect his/her ability to continue to immigrate with the same I-140 petition and I-485 application on file with USCIS. To have this occur, USCIS would have to agree that the portability provisions of AC21 apply, even in the case of termination of employment, and that the new position is in the "same or similar occupation" to the position identified in the I-140. In this situation, the employee would need employment authorization to work for the new employer (either an EAD or a new H-1B petition by that employer).

A10.
Potentially faster processing for concurrent filings. In concurrent filing cases, there may be shorter overall processing times. If the employee’s long term goal is to assist family members to immigrate to the U.S., faster adjudication of the I-485 might speed up their applications. In addition, filing the I-485 earlier will also speed up a qualifying family member’s request for work authorization.



B.
Adjustment of Status - The Disadvantages

In 1998 - 2000, the USCIS allowed a huge backlog of AOS applications to accumulate, resulting in lengthy processing times. However, within the past few years, the USCIS Service Centers have begun to attack the backlogs, and we are seeing approvals on applications filed approximately 6-15 months ago. It is important to note that processing times vary among the USCIS Service Centers. For current USCIS Service Center processing times, please refer to processing times on our website.

B1.
Unpredictable processing times. The primary disadvantage of AOS in the past has been lengthy and unpredictable processing times. As indicated above, USCIS has been giving a higher priority to processing AOS applications and the processing times are improving. However, AOS processing times continue to be longer than consular processing. The possibility of concurrent filing may actually serve to increase USCIS processing times. Longer processing times have the potential to prejudice the applications of dependent children. Under the terms of the Child Status Protection Act signed into law on August 6, 2002 however, dependents may be considered under 21 for the purpose of eligibility to apply for permanent residence. As a result, dependent children who were under the age of 21 when the application was initially submitted, but who become 21 years of age while the application is still pending, may or may not lose their eligibility for permanent resident status depending on the particular circumstance.

B2.
Concurrent Filings:


a.
Changes in the USCIS regulation. At this time, we are working with an interim rule and without any interpretive or implementing memorandum from the USCIS. If an employee proceeds with concurrent filing, there is no guarantee that USCIS will not make changes to the interim rule as it currently stands, or make interpretations that we have not anticipated.


b.
Risk of denial of the I-140. Filing the I-485 application enables the employee and dependents to concurrently file applications for Employment Authorization Document [EAD or I-765], and Advance Parole travel authorization [AP or I-131]. Despite these independent bases for work and travel authorization, we recommend that AOS applicants maintain their underlying nonimmigrant status, (at least until the I-140 is approved). This will mean additional fees for the employer if nonimmigrant visa extensions are required, as well as possible unnecessary usage of limited time in H/L status. For this reason, we currently recommend that if the I-140 is supported by a strong labor certification, the I-485 should be filed concurrently. However, we recommend that an I-140 supported by a labor certification that has risks such as a “substituted” employee, or an I-140 that is not supported by a labor certification [e.g., an Outstanding Researcher petition, or Extraordinary Ability petition] should be filed separately, and the I-485 not be filed until the I-140 is approved. We believe that this recommendation gives the employee the best chance of avoiding a situation where the I-140 is denied months after a concurrent filing, leaving the employee and the employer with an I-485 that has no legal basis. In that case, absent a valid non-immigrant status, the employee would be out-of-status and faced with the prospect of trying to reinstate status and employment authorization.


c.
Possible inapplicability of AC21 "portability". It is unclear whether the AC21 "portability" rules will apply to concurrent filings. Therefore, it is unclear what action the USCIS would take if the I-140 was denied after the I-485 application was pending for more than 180 days. If USCIS decides that in such cases no portability is allowed, the AOS applicant would be required to ask the employer to begin the immigration process all over again, including a new non-immigrant visa petition (if eligible), a new labor certification (if required), a new I-140, etc. Given the limits on the amount of time one can remain in H or L status, the employee might have to leave the U.S. and complete the process from abroad. There is also the risk that a new employer would not be interested in supporting the immigration process at all.



C.
Consular Processing - The Advantages

C1.
Shorter Processing Times. As noted above, the primary advantage of consular processing has been shorter processing times compared to AOS; although, as USCIS processing times get shorter, this particular advantage becomes less and less important. If the USCIS properly and timely forwards the approved I-l40 employment-based preference petition to the National Visa Center of the U.S. Department of State, it is conceivable that an immigrant visa appointment at an American Consulate could be scheduled within no more than one year, depending upon the particular Consulate's workload. If the applicant for an immigrant visa is in possession of a valid nonimmigrant visa, the individual may travel freely while waiting for the visa appointment to be scheduled. Please note, however, that TN nonimmigrants must be more cautious with international travel, since they must establish at the time of each TN re-entry into the United States that they are working temporarily in this country and that they have a residence abroad which they have no intention of abandoning. This can be difficult if they have started the green card process. Shorter processing times are particularly advantageous to the applications of dependent children. Under the terms of the Child Status Protection Act signed into law on August 6, 2002 however, dependents may be considered under 21 for the purpose of eligibility to apply for permanent residence. As a result, dependent children who were under the age of 21 when the application was initially submitted, but who become 21 years of age while the application is still pending, may or may not lose their eligibility for permanent resident status depending on the particular circumstance.

D.
Consular Processing – The Disadvantages

D1.
Inconvenience/cost. The primary disadvantages are the inconvenience and expense of traveling to the American Consulate to appear for the required interview. Unlike the USCIS, DOS does not waive the interview requirement and it applies to all family members seeking immigrant visas irrespective of age. The interview may well be scheduled at a time that does not fit well with employment considerations and personal schedules in the United States; rather, the interview is scheduled at a time that is convenient to the Consulate, not the applicant. Appointment dates are generally difficult to change and will result in additional delays in the application process. While attorneys of record may routinely appear at interviews for which their clients are scheduled by the USCIS, the same does not hold true for DOS; attorneys are normally barred from appearing with their clients in the interview room, and may be barred from even entering the Consulate itself.

D2.
Documentary requirements. Documentary requirements are different and generally more onerous for consular processing applicants. Most nationals must obtain police clearances from all countries in which they have resided for more than six months since reaching the age of 16 if the U.S. Department of State considers such records to be available. Those who have served in a foreign military organization must obtain a record of their military service. For information regarding whether DOS considers police, military, and other vital records available, please review the DOS website at http://travel.state.gov/reciprocity/index.htm. The medical examination will be scheduled with an approved physician or medical clinic selected by the Consulate and may require the applicant and accompanying family members to appear in the foreign country up to one week in advance of the interview date; medical examinations conducted by USCIS-approved physicians or clinics are not acceptable.

D3.
No Work Authorization for Dependent Family Members. The EAD application available to AOS applicants is not available to applicants for immigrant visas through the consulate. Therefore accompanying family members in H-4, O-3 and TD status who have not been able to work in the United States will continue to be unable to work until their immigrant visas have been issued and they have been readmitted to the United States as permanent residents. Since the EAD card can normally be obtained within three months, and the immigrant visa interview may well take a year to be scheduled, this can result in a considerable delay in obtaining employment authorization.

D4.
No AC21 "portability". AC21 section 106 allows for portability for AOS applicants if there are changes in the job offer so long as the new job is for a “same or similar occupation” and so long as the AOS is pending for at least 180 days. This relief only applies to adjustment applicants. Therefore, someone who opts for CP rather than AOS is forgoing the possibility of porting their application for permanent residence to another employer or to another job if such an event occurs. If someone chooses to process through CP, major changes which may occur in the nature of the job duties or geographical location of employment before the CP interview, or prior to admission as an immigrant following the CP interview, can serve to render the approved labor certification and/or I-140 petition invalid. If the employer goes out of business, or is acquired by another company which has no intention of continuing the permanent resident process, there will be no basis for approval of the CP application for a permanent resident visa. For CP cases, the offer of employment which provided the initial basis of the filing of the CP application must continue in effect until the applicant has been granted lawful permanent resident status.

This memorandum is based on information and processing time estimates provided to us by the USCIS. It is possible that USCIS may change their priorities in the future in such a way that processing times for adjustment of status may be reduced or lengthened.

As this memorandum hopefully makes clear, this is not a "one size fits all" situation. Many factors have to be taken into account before an applicant for permanent resident status makes the decision to either apply for adjustment of status with the USCIS or for an immigrant visa at a US consulate abroad, and neither option is going to be a perfect fit. All applicants should consult with their immigration attorney before making a final decision to pursue either option. By instructing the Service in item 4 of the Form I-140 to "send the petition to NVC" where concurrent filing is not desired, we are providing applicants with the maximum amount of flexibility and are leaving their options open to either adjust or go through consular processing.

United States immigration regulations, procedures, and processing times are always changing. Important decisions have to be made by applicants desiring to obtain permanent resident status in light of such changes. The purpose of this memo is to provide recent information regarding changes in the process so that those in the process of becoming permanent residents can make an informed decision based on the available options. Specifically, the two options are: filing for adjustment of status in the U.S. through the U.S. Citizenship and Immigration Services (USCIS or Service) vs. filing for an immigrant visa through a U.S. Department of State (DOS) Consulate or Embassy abroad.

When the Form I-l40 employment-based immigrant visa petition is submitted to the USCIS Service Center having jurisdiction over 7the intended area of employment, the petitioner must indicate whether the beneficiary will apply for “consular processing” at an American Consulate overseas for an immigrant visa or will apply for adjustment of status (AOS or I-485) to permanent residence with the USCIS. If I-485 is selected, the beneficiary of the I-140 has the option of “concurrent filing” of the I-140 and I-485. Concurrent filing can involve simultaneous filing of the I-140 and the I-485, or initial filing of the I-140, then filing of the I-485 while the I-140 is still pending. Our policy on all I-140 filings where the beneficiary does not choose “concurrent filing” is to request that USCIS send notice of the approval to the National Visa Center (NVC): this allows the beneficiary to choose whether to apply for the AOS or consular processing after the I-140 has been approved.



A.
Adjustment of Status - The Advantages

A1.
Convenience. Since the application is filed by mail to the USCIS Service Center having jurisdiction over the alien's place of residence, there is no need to travel long distances and to incur the inconvenience and expense of an interview abroad at an American Consulate.

A2.
Waiver of interview. A small percentage of all employment-based applications for adjustment of status are returned to the local USCIS district offices for interviews to ensure proper quality control. Otherwise the interview requirement is usually waived, and the Service will simply adjudicate the application based upon the forms and supporting documentation which have been furnished. All family-based and diversity visa (lottery) applications are interviewed.

A3.
Employment Authorization for principal, as well as dependent family members. Adjustment applicants can apply for an Employment Authorization Document (EAD) concurrently with, or after filing of the AOS application. EAD applications involve processing times of approximately 90 days and are valid for a period of one year. H/L/O visa holders have the option of filing for extension of nonimmigrant work authorization instead of, or in addition to, filing for an EAD. The advantages to doing so include longer work authorization validity periods, and maintenance of nonimmigrant status in the unlikely event the AOS is denied. Our general office policy is to encourage filing of an EAD concurrently with the AOS application given its lengthy processing time, in the event it is needed at a later point. Not only principal AOS applicants but their dependents may apply for EADs. Therefore, H-4, O-3, and TD dependent family members, who were prohibited from engaging in employment in the United States, may apply for employment authorization as AOS applicants. EADs provide an essentially unrestricted right to engage in employment or to be self-employed. EADs may be extended in increments of one year until the AOS application is adjudicated.

A4.
Permission to travel (advance parole authorization). All applicants for AOS may apply to the USCIS Service Center for permission to depart the United States temporarily after the adjustment application has been accepted for processing. It has been taking 90+ days to complete the processing of advance parole applications. The AOS applicant cannot depart the United States while the advance parole is pending without being deemed to have abandoned the adjustment application. However, the local USCIS district offices do retain jurisdiction to adjudicate advance parole applications for truly emergency and unforeseen reasons (i.e., sudden serious illness or death of an immediate family member). USCIS regulations which became effective on July l, l999 permit AOS applicants who hold valid, multiple entry H/L visas to travel on those visas without the need to apply for advance parole authorization, provided that they do not violate their status as H-1B or L-1 nonimmigrants (this means that they must not have actually used an EAD card to accept employment other than with their H-l/L-1 employer, or stopped working for that employer), and provided they present upon entry to the U.S. the original AOS I-485 Receipt Notice A similar rule applies to dependent AOS applicants: they cannot have actually used an EAD card to accept employment in order to continue to use their H-4/L-2 visas, together with their original I-485 Receipt Notice, to travel. Note that other nonimmigrant visa holders, e.g. TNs and O-1s are excluded from this exception and are considered to abandon their adjustment applications if they use their nonimmigrant visas to travel.

A5.
Portability. On October 17, 2000, the President signed into law the American Competitiveness in the 21st Century Act (AC-21). This change in immigration law creates another advantage to filing for adjustment of status rather than consular processing. Under AC-21, Section 106(c), if the AOS application has been pending for 180 days or more, the AOS applicant is permitted to change jobs with the same employer, or to switch to another entirely different employer as well as geographic location, provided that s/he continues to be employed in the “same or similar occupation.” This is a radical departure from existing rules and allows great flexibility to adjustment applicants. USCIS does expect to be provided with notification of any change of employment and a description of how that change in employment is in compliance with AC21 in that it is within the “same or similar occupation”.

A6.
Police certificates not required. If you choose consular processing, you have to obtain police certificates, in countries where the Department of State (DOS)e considers them available, from every locality of the country of your nationality or latest residence abroad where you lived since attaining the age of 16. If you opt for consular processing, you will also need to obtain police certificates from all other countries where you have lived for at least one year. AOS applicants instead provide their fingerprints for FBI and related agency processing, as well as arrest or conviction records if any.

A7.
Attorney can be present if Interview is scheduled. In the event of an interview at a local USCIS office, an attorney from our office can be present at the interview. In contrast, an attorney will not be present at the immigrant visa interview if you choose consular processing.

A8.
If something goes wrong. If there is a problem with an adjustment application, e.g. it is denied, we can appeal the decision or seek some other administrative relief. If there is a refusal of an immigrant visa by a Consul abroad, it is more difficult to obtain review. Also, if there is a processing delay while additional information/documentation is sought while an AOS application is pending, the applicant can continue to renew your EAD and advance parole documents until the issues are resolved. In contrast, if there is a problem at the Consulate, the applicant may be stranded outside the United States until the issues are resolved.

A9.
Potential job flexibility for concurrent filings. In concurrent filing cases, if an employee is laid off or employment is otherwise terminated, or if the employee expects to be transferred to another, but similar, position (e.g., a promotion or change in job location) with the same employer, concurrent filing might protect his/her ability to continue to immigrate with the same I-140 petition and I-485 application on file with USCIS. To have this occur, USCIS would have to agree that the portability provisions of AC21 apply, even in the case of termination of employment, and that the new position is in the "same or similar occupation" to the position identified in the I-140. In this situation, the employee would need employment authorization to work for the new employer (either an EAD or a new H-1B petition by that employer).

A10.
Potentially faster processing for concurrent filings. In concurrent filing cases, there may be shorter overall processing times. If the employee’s long term goal is to assist family members to immigrate to the U.S., faster adjudication of the I-485 might speed up their applications. In addition, filing the I-485 earlier will also speed up a qualifying family member’s request for work authorization.



B.
Adjustment of Status - The Disadvantages

In 1998 - 2000, the USCIS allowed a huge backlog of AOS applications to accumulate, resulting in lengthy processing times. However, within the past few years, the USCIS Service Centers have begun to attack the backlogs, and we are seeing approvals on applications filed approximately 6-15 months ago. It is important to note that processing times vary among the USCIS Service Centers. For current USCIS Service Center processing times, please refer to processing times on our website.

B1.
Unpredictable processing times. The primary disadvantage of AOS in the past has been lengthy and unpredictable processing times. As indicated above, USCIS has been giving a higher priority to processing AOS applications and the processing times are improving. However, AOS processing times continue to be longer than consular processing. The possibility of concurrent filing may actually serve to increase USCIS processing times. Longer processing times have the potential to prejudice the applications of dependent children. Under the terms of the Child Status Protection Act signed into law on August 6, 2002 however, dependents may be considered under 21 for the purpose of eligibility to apply for permanent residence. As a result, dependent children who were under the age of 21 when the application was initially submitted, but who become 21 years of age while the application is still pending, may or may not lose their eligibility for permanent resident status depending on the particular circumstance.

B2.
Concurrent Filings:


a.
Changes in the USCIS regulation. At this time, we are working with an interim rule and without any interpretive or implementing memorandum from the USCIS. If an employee proceeds with concurrent filing, there is no guarantee that USCIS will not make changes to the interim rule as it currently stands, or make interpretations that we have not anticipated.


b.
Risk of denial of the I-140. Filing the I-485 application enables the employee and dependents to concurrently file applications for Employment Authorization Document [EAD or I-765], and Advance Parole travel authorization [AP or I-131]. Despite these independent bases for work and travel authorization, we recommend that AOS applicants maintain their underlying nonimmigrant status, (at least until the I-140 is approved). This will mean additional fees for the employer if nonimmigrant visa extensions are required, as well as possible unnecessary usage of limited time in H/L status. For this reason, we currently recommend that if the I-140 is supported by a strong labor certification, the I-485 should be filed concurrently. However, we recommend that an I-140 supported by a labor certification that has risks such as a “substituted” employee, or an I-140 that is not supported by a labor certification [e.g., an Outstanding Researcher petition, or Extraordinary Ability petition] should be filed separately, and the I-485 not be filed until the I-140 is approved. We believe that this recommendation gives the employee the best chance of avoiding a situation where the I-140 is denied months after a concurrent filing, leaving the employee and the employer with an I-485 that has no legal basis. In that case, absent a valid non-immigrant status, the employee would be out-of-status and faced with the prospect of trying to reinstate status and employment authorization.


c.
Possible inapplicability of AC21 "portability". It is unclear whether the AC21 "portability" rules will apply to concurrent filings. Therefore, it is unclear what action the USCIS would take if the I-140 was denied after the I-485 application was pending for more than 180 days. If USCIS decides that in such cases no portability is allowed, the AOS applicant would be required to ask the employer to begin the immigration process all over again, including a new non-immigrant visa petition (if eligible), a new labor certification (if required), a new I-140, etc. Given the limits on the amount of time one can remain in H or L status, the employee might have to leave the U.S. and complete the process from abroad. There is also the risk that a new employer would not be interested in supporting the immigration process at all.



C.
Consular Processing - The Advantages

C1.
Shorter Processing Times. As noted above, the primary advantage of consular processing has been shorter processing times compared to AOS; although, as USCIS processing times get shorter, this particular advantage becomes less and less important. If the USCIS properly and timely forwards the approved I-l40 employment-based preference petition to the National Visa Center of the U.S. Department of State, it is conceivable that an immigrant visa appointment at an American Consulate could be scheduled within no more than one year, depending upon the particular Consulate's workload. If the applicant for an immigrant visa is in possession of a valid nonimmigrant visa, the individual may travel freely while waiting for the visa appointment to be scheduled. Please note, however, that TN nonimmigrants must be more cautious with international travel, since they must establish at the time of each TN re-entry into the United States that they are working temporarily in this country and that they have a residence abroad which they have no intention of abandoning. This can be difficult if they have started the green card process. Shorter processing times are particularly advantageous to the applications of dependent children. Under the terms of the Child Status Protection Act signed into law on August 6, 2002 however, dependents may be considered under 21 for the purpose of eligibility to apply for permanent residence. As a result, dependent children who were under the age of 21 when the application was initially submitted, but who become 21 years of age while the application is still pending, may or may not lose their eligibility for permanent resident status depending on the particular circumstance.

D.
Consular Processing – The Disadvantages

D1.
Inconvenience/cost. The primary disadvantages are the inconvenience and expense of traveling to the American Consulate to appear for the required interview. Unlike the USCIS, DOS does not waive the interview requirement and it applies to all family members seeking immigrant visas irrespective of age. The interview may well be scheduled at a time that does not fit well with employment considerations and personal schedules in the United States; rather, the interview is scheduled at a time that is convenient to the Consulate, not the applicant. Appointment dates are generally difficult to change and will result in additional delays in the application process. While attorneys of record may routinely appear at interviews for which their clients are scheduled by the USCIS, the same does not hold true for DOS; attorneys are normally barred from appearing with their clients in the interview room, and may be barred from even entering the Consulate itself.

D2.
Documentary requirements. Documentary requirements are different and generally more onerous for consular processing applicants. Most nationals must obtain police clearances from all countries in which they have resided for more than six months since reaching the age of 16 if the U.S. Department of State considers such records to be available. Those who have served in a foreign military organization must obtain a record of their military service. For information regarding whether DOS considers police, military, and other vital records available, please review the DOS website at http://travel.state.gov/reciprocity/index.htm. The medical examination will be scheduled with an approved physician or medical clinic selected by the Consulate and may require the applicant and accompanying family members to appear in the foreign country up to one week in advance of the interview date; medical examinations conducted by USCIS-approved physicians or clinics are not acceptable.

D3.
No Work Authorization for Dependent Family Members. The EAD application available to AOS applicants is not available to applicants for immigrant visas through the consulate. Therefore accompanying family members in H-4, O-3 and TD status who have not been able to work in the United States will continue to be unable to work until their immigrant visas have been issued and they have been readmitted to the United States as permanent residents. Since the EAD card can normally be obtained within three months, and the immigrant visa interview may well take a year to be scheduled, this can result in a considerable delay in obtaining employment authorization.

D4.
No AC21 "portability". AC21 section 106 allows for portability for AOS applicants if there are changes in the job offer so long as the new job is for a “same or similar occupation” and so long as the AOS is pending for at least 180 days. This relief only applies to adjustment applicants. Therefore, someone who opts for CP rather than AOS is forgoing the possibility of porting their application for permanent residence to another employer or to another job if such an event occurs. If someone chooses to process through CP, major changes which may occur in the nature of the job duties or geographical location of employment before the CP interview, or prior to admission as an immigrant following the CP interview, can serve to render the approved labor certification and/or I-140 petition invalid. If the employer goes out of business, or is acquired by another company which has no intention of continuing the permanent resident process, there will be no basis for approval of the CP application for a permanent resident visa. For CP cases, the offer of employment which provided the initial basis of the filing of the CP application must continue in effect until the applicant has been granted lawful permanent resident status.

This memorandum is based on information and processing time estimates provided to us by the USCIS. It is possible that USCIS may change their priorities in the future in such a way that processing times for adjustment of status may be reduced or lengthened.

As this memorandum hopefully makes clear, this is not a "one size fits all" situation. Many factors have to be taken into account before an applicant for permanent resident status makes the decision to either apply for adjustment of status with the USCIS or for an immigrant visa at a US consulate abroad, and neither option is going to be a perfect fit. All applicants should consult with their immigration attorney before making a final decision to pursue either option. By instructing the Service in item 4 of the Form I-140 to "send the petition to NVC" where concurrent filing is not desired, we are providing applicants with the maximum amount of flexibility and are leaving their options open to either adjust or go through consular processing.

Denials

The second thing to understand about AOS is that it is discretionary, not mandatory. It is possible for a person who is technically eligible for immigrant status to nonetheless be denied adjustment of status in the exercise of discretion. The most common instances of such discretionary denials involve cases where the applicant abused the nonimmigrant process.

For example, if a person applies for admission into a school or for a change in nonimmigrant status within 30 days of entry, they are presumed to have acted in bad faith. That is, they had the preconceived intent to make the change and they used an easier to obtain visa in order to evade the normal screening process abroad for the visa they really wanted.

If the application occurs between 30 and 60 days after entry, no presumption is made, but there is a strong suspicion that the person may have acted in bad faith. The case will be scrutinized carefully. If the application occurs more than 60 days after entry, the presumption is that the applicant acted in good faith. Both the USCIS and the State Department reserve the right to re-examine such cases, however, if there is any additional evidence of wrongdoing. If an AOS applicant has anything in his or her past visa history that suggests that he or she may have abused the visa process, or otherwise tried to take shortcuts, the USCIS has made it clear that they can and will deny such adjustment applications in the exercise of discretion. Discretionary AOS refusals are not subject to administrative review. While federal court review is theoretically possible, few judges are willing to attempt to substitute their judgment for that of USCIS officers in the absence of gross abuse of discretion.

Advantages of Adjustment of Status

First, it does not require that the applicant go abroad at any time prior to the grant of lawful permanent resident status. This is vitally important to those applicants who have accumulated more than 180 days in "unlawful status" and would otherwise be subject to a three year exclusion upon their departure from the United States. For such people, who are also eligible to file for adjustment of status under the "grandfathering" provision of Section 245(i) of the Immigration and Nationality Act, this is their only real option. Were they to go abroad to apply for an immigrant visa, they would be subject to the three year exclusion.

The second principal advantage is that an applicant who requires a waiver of exclusion may remain in the United States while the waiver is being processed. As only a tiny handful of applicants ever require waivers, this is not of great significance to the average applicant. It is, nonetheless, a significant advantage to those who do require waivers.

Disadvantages of Adjustment of Status

There are several significant disadvantages to applying for AOS. First, there is the delay involved in AOS processing. A person wishing to apply for AOS today should be prepared to wait up to five years for an adjudication. During this time, employer sponsored applicants may not leave their employers or even accept promotions.

A second disadvantage is the discretionary decision making authority of USCIS officers. Where one officer may see nothing, another may see preconceived intent or presumed fraud. In such case, the officer has the discretionary authority to deny the adjustment of status application. This is very similar to the authority of consular officers deciding nonimmigrant visas (consular officers do not have similar authority when they decide immigrant visas).

A third and final disadvantage to AOS processing involves the legal grounds for denying an application. Anything that would result in a denial of an application for an immigrant visa at a consular post abroad automatically requires a denial of an application for AOS in the United States. In addition, there are several independent grounds that require the denial of an AOS application, but not the denial of a consular immigrant visa application.

One of the greatest and most persistent myths about AOS processing is the belief that if an AOS application is denied, the applicant can easily return to non-immigrant status and go on as if the AOS application had never been made. This is simply not true. If a person is denied AOS because of serious personal misconduct, they may well be taken into custody immediately and held until they can be physically removed. Even when this is not the case, and a denied applicant is not taken into custody, he or she must leave the United States within a very short period of time and will find it extremely difficult to ever return. It is the extremely rare case in which a denied AOS applicant is allowed to remain in the U.S. or easily re-enter.

Dependants

The person who qualifies as an immigrant is know as the principal applicant. All qualifying dependants of the principal applicant are entitled to apply for AOS as well. A qualifying dependant is defined as the spouse or unmarried child (under the age of 21) of the principal applicant.

Filing

For those who are eligible, and who wish to use this procedure, AOS involves filing a package with the USCIS. Employment based applicants must file by mail with the USCIS regional service center having jurisdiction over them. Family based applicants must file with the CIS Lockbox in Chicago, IL.

Employment Authorization

Applicants for adjustment of status may also ask for an Employment Authorization Document ("EAD"). When approved and sent to the applicant, an EAD permits the holder to work in the US. EAD cards are valid for a period of one year, but may be renewed as many times as necessary during the time that the applicant's AOS application is pending.

Advance Parole

Some applicants for AOS may also apply for and receive advance parole (permission to travel abroad). The law provides that, with limited exceptions, any AOS applicant who departs from the United States without having already been granted advance parole is deemed to have abandoned his or her AOS application. Some adjustment applicants (holders of valid H or L visas) do not require advance parole to travel abroad. Advance parole is granted for periods of one year at a time and may be renewed as many times as necessary during the time the adjustment of status application is pending. Current USCIS policy provides that all adjustment applicants who are eligible for advance parole shall be granted this benefit, irrespective of their reason for traveling abroad.




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