Reaching the end stage of the immigrant visa process can be as anxiety provoking as the very first step. For most employment-based immigrants, sponsorship by a U.S. employer and testing of the U.S. labor market (i.e. "labor certification") are a prerequisite to the filing of an Immigrant Visa petition. Yet labor certification approval is no guarantee of a green card. There is still the Immigrant Visa petition (also known as the "Form I-140"), which is the visa classification, and the immigrant visa application process, which takes two forms: (1) "adjustment of status"- a process which allows you to complete the permanent residence process without leaving the country through the filing of a Form I-485 filing through the Bureau of Citizenship and Immigration Services ("BCIS", formerly known as the "INS"); or (2) "consular processing." - a process whereby you apply for your immigrant visa at a U.S. Consulate abroad through filings with the U.S. Department of State.

The purpose of this article is to outline for comparison purposes the procedures, benefits and limitations of adjustment of status and consular processing. This knowledge will allow you to make an informed decision as to which process will be more beneficial to you in helping you secure your immigrant visa and U.S. lawful permanent residence.

I. Brief Overview of the Immigrant Visa Process

A visa must be immediately available for allocation to you in order to become a lawful permanent resident. Immigrant visas are divided into categories with preferences. In general, the higher preference categories have more visas immediately available to intending immigrants and generally do not get backlogged. To track eligibility for an immigrant visa, the BCIS assigns a Priority Date to your case. This is your place in the immigrant visa line. The Priority Date is established on the date that either an application for alien labor certification is filed on your behalf or, if no labor certification is required, the date on which a Form I-140 Immigrant Visa petition is filed on your behalf with the BCIS.

You can track visa availability through monthly report published by the Department of State called the Visa Bulletin (http://travel.state.gov/visa_bulletin.html). If you have an approved I-140 petition and your priority date falls before the date listed on the Visa Bulletin for your category (and your country, if specified) or if the category states "C" (which stands for "current"), an immigrant visa can be issued to you.

Recent changes in the laws have modified the procedures for obtaining an immigrant visa, streamlining them in certain situations and slowing them in others. Numerous variations in actual processing time can occur depending on the procedure selected and also depending upon such factors as citizenship, residence both in and outside the U.S., and place of birth. Whether one process is better for you will depend on a number of factors including, most notably, your employment situation, your travel plans, and whether you intend to marry in the future. We will address these factors below in comparing "adjustment of status" and "consular processing".

II. Adjustment of Status

To be eligible for adjustment of status, you must have a current Priority Date and be otherwise "admissible" to the U.S. as a permanent resident. To apply for adjustment of status you must submit to a BCIS Service Center a completed adjustment of status application (Form I-485) along with a biographic form, photographs, a medical examination, filing fees, and supporting documentation (birth/marriage certificates, employment and financial information, and U.S. immigration records).

Prior to August 2002, you could not seek adjustment of status unless you had an approved I-140 immigrant petition. This placed applicants who sought permanent residence through adjustment of status and those who sought it through Consular Processing at equal places at the starting gate. However, with the advent of acceptance of concurrent filing of the I-140 petition and the I-485 application, applicants for adjustment of status have a greater initial advantage out of the gate.

A. Benefits of Adjustment of Status

So beyond being able to file an I-140 petition and I-485 application concurrently, what are the advantages? Actually, they are many. Consider the following:

· No need to travel outside the U.S.
· No need to obtain police certificates from every country in which you've resided for at least six months since the age of 16
· No interruption in employment
· No interview (typically)
· Can obtain employment authorization card (as can your spouse)
· Can obtain advance parole travel documents to allow overseas travel if needed (as can your spouse)
· Can be represented by an attorney if interview required
· Can obtain a second chance before an immigration court if denied
· Can avoid separation from spouse and/or children
· Can avoid potential bars to reentry if you've been unlawfully present in the U.S. for 180 days or more
· Can provide for potential change of employers in the midst of the adjustment
· Can provide for ability to extend H-1B status beyond sixth year where unable to file adjustment of status due to immigrant visa backlogs or where such backlog prevents the adjustment of status application from being approved
· Can potentially obtain I-140 approval more quickly if concurrently filed with I-485 application

B. Disadvantage

Very Slow

From filing to approval the wait can be lengthy. This is the chief disadvantage. Compared with consular processing, the adjustment of status can take anywhere from three months to 24 months longer to admission to lawful permanent residence. The following is a breakdown of current processing times by Regional Service Center for I-485 processing:

California Service Center 19 months
Nebraska Service Center 21 months
Texas Service Center 30 months
Vermont Service Center 18 months

III. Consular Processing

Consular Processing can only be initiated once an Immigrant Petition (Form I-140) has been approved and the priority date is current or will soon be current. The process is commenced through the Department of State National Visa Center ("NVC"), which initiates processing by establishing a case number for immigrant visa processing and by sending out immigrant visa application forms and instructions called "Instruction Package for Immigrant Visa Applicants" (formerly known as "Packet 3). The main forms - a biographical sheet and a checklist attestation - are then completed, signed and filed with the NVC, which forwards the applications to the U.S. Consulate for scheduling of an interview.

For the interview, you will be asked to bring certain supporting documents including birth/marriage certificates, police certificates (where applicable) from every country where you lived for at least 6 months since the age of 16, immigration style color photographs, and evidence of your job offer and/or continued employment and sponsorship by the petitioning U.S. company (where a labor certification or job offer is required). You must also have a medical examination conducted by a designated physician listed with the U.S. Consulate and be tested for or provide proof of certain vaccinations. If your application is approved, you will be issued an immigrant visa approval package with your immigrant visa approval in a sealed envelope. Upon entry into the U.S., you will be stamped as an arriving immigrant and receive a temporary I-551 stamp evidencing your admission as a U.S. permanent resident. If your case is not approved, you will not be admitted back into the U.S. unless you have a valid H or L visa and employment with an H-1B or L-1 petitioning employer. Similarly, any family member who does not possess H or L status will also be prevented from returning the U.S.

A. Reasons for Consular Processing

Basically, there are four possible reasons why Consular Processing may be the better route for you. Of these, one is necessity: a prior failure to maintain valid status could make you ineligible for adjustment of status. But if this is not applicable, why else? The following are the primary reasons and advantages:

· You have immediate family members overseas and you do not possess an H or L visa status.

While most employment based immigrants will possess H or L visas, those who do not often cannot or, at a minimum, should not travel outside the U.S. once they have an immigrant visa petition approved on their behalf. Why? Because the Bureau of Customs and Border Protection officers (former INS Inspectors who screen your re-admission at airports and border crossings) can deny you admission as an intending immigrant. Similarly, family members will also be denied visas to come to the U.S. to join you until they are able to enter as immigrants. Consular processing with your family will ensure the best possibility that your spouse and/or children can immigrate to the U.S. with you at the same time.

· Your employer has assigned you to overseas business and you will not be needing to come back to the U.S. in the next six months to one year. In the above instance, it may be more advantageous and less costly to seek your immigrant visa through the U.S. Consulate in the country where you are now temporarily residing or in your home country. Savings include potential renewal fees associated with maintenance of status and employment authorization, as well as advance parole permission to travel. Also minimized is the risk that your application for adjustment of status could be unwittingly abandoned if you were unable to timely secure a travel document.
· Speed in processing: The U.S. Consulate in your home country or where you last resided processes immigrant visa applications much faster.

Speed in processing is always an influential factor in choosing Consular Processing over Adjustment of Status. The difference could mean getting lawful permanent residence as much as 18-24 months faster than through the BCIS.

C. Disadvantages

Before you rush to consular process for your immigrant visa, understand what you are you are sacrificing:

· Sacrificing the right to obtain an employment authorization card;
· Sacrificing the potential ability to travel outside the U.S.;
· Sacrificing "green card" portability which allows you to change job position or employers and still retain eligibility for lawful permanent residence;
· Sacrificing the ability to obtain permanent residence without an interview and the right to have an attorney with you at an interview should one be required; and
· Sacrificing the right to an appeal if the permanent residency is denied.

IV. Additional Considerations

If you are from a country where visa availability commonly becomes backlogged in the employment-based categories, consider seeking adjustment of status. Visas are charged to your country of birth. Thus, if you were born in India, and India is designated as a High Admission country for separate visa availability under the Visa Bulletin, you could face a backlog in visa availability. Should your visa category become backlogged, you may find yourself needing to renew an H-1B or L visa. If you are a student, you won't be able to extend your status because you'd be viewed as an intending immigrant. Filing for adjustment of status can help you avoid falling into these situations.

If you are planning to get married, and you hold H or L status, your future spouse can obtain an H-4 or L-2 dependent visa and enter the U.S. even if you have already filed for adjustment of status. If your spouse would like to work in the U.S. while his or her immigrant application is being processed, your spouse will need to apply for adjustment of status and obtain an employment authorization card. If your spouse does not wish to work, and if you continue to maintain H or L status, then consular processing may be advantageous if processing times are quicker at the U.S. Consulate in your home country.

If you have an approved I-140 petition and you had already indicated that you wish to apply for your immigrant visa at the U.S. Consulate, consider staying on that track, particularly if you feel that your sponsorship with your U.S. employer is solid and if processing times are relatively short and predictable at the designated U.S. Consulate. You are no longer eligible to pursue dual track processing - i.e. adjustment of status and consular processing.

If you indicated on your I-140 petition that you intend to apply for adjustment of status, you should seriously consider staying on that track. Switching to Consular Processing can add as much as eight to 12 months to the overall processing time if you try to convert mid-stream.

If you have ever been arrested or convicted and have a spouse or child that is a permanent resident or U.S. citizen, always consider adjustment of status first. Also make sure to consult an experienced immigration attorney.

Know what Service Center handles the processing of immigrant visa petitions (I-140) and adjustment of status applications (I-485) for your particular case. The I-140 is filed with the Service Center that has jurisdiction over your place of intended employment. If you live in a different state that is outside of the jurisdiction of your I-140 filing, you may be able to choose between two Service Centers. Depending on the Service Center processing times, you could be approved up to one year faster. Also, some Service Centers adjudicate I-140 petitions within two to three months, while other can take up to 14 months. If an I-140 approval can be expected rapidly, Consular Processing may be the best bet for you.

In sum, understand your own needs and how they can coexist with the uncertainties of the immigrant visa process. Knowing these and the advantages, benefits and pitfalls of adjustment of status verses consular processing will give you the best opportunity to secure permanent residence with the least anxiety possible.

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