a. A person has to choose one or the
other alternative, usually at the time of filing the I-140: Immigrant
Petition, which is filed by the sponsoring employer.
b. If the foreign national applicant
has already applied for the adjustment of status, but now wishes to purse
the option of consular processing, the person may need to withdraw the
adjustment of status application. The person then has to file a Form I-
824 to request that the file be transferred to the appropriate consulate.
(Note that if the applicant's nonimmigrant status has expired, then
withdrawing the I-485 would not be a good idea, since it would leave him
or her without status! A person in that situation needs to keep the I-485
going, in order to be able to remain here legally to complete the green
card process.)
The INS has recently stated that the A or
alien file for the foreign national cannot be processed by both methods,
since the file can either be with the INS Service Center having
jurisdiction over the case or has to be sent to the consular office having
jurisdiction of the case.
c. If the consular processing option
is selected, the National Visa Center at New Hampshire will forward the
file to the appropriate consular office having jurisdiction over the
permanent foreign address of the applicant.
d. Adjustment of status usually
takes about 15 to 18 months and sometimes, about 3 years, while consular
processing generally takes much less time, about 6 to 8 months in most
cases. A recent client of The Law Office of Sheela Murthy, P.C. advised us
that his consular case took only about 3 months!! No, the consulate was
not an Indian consulate but the U.S. consulate in Sydney, Australia!
e. Although the adjustment of status
process may be lengthy, the one advantage is that while it is pending, the
applicant and all family members over the age of 16 years can apply for
and obtain an employment card, usually in about 1 - 3 months. This can be
very useful particularly to those whose non-immigrant status is expected
to expire shortly and do not want to be stuck abroad, while the children
are attending school, etc.
f. There are a variety of problems,
major or minor, that can surface irrespective of which option has been
selected. If a person opts for consular processing, and problems occur
while the person is abroad during the interview with the consular officer,
the applicant would be obliged to remain outside the U.S., possibly for an
extended period of time, while those problems are sorted out. This could
sometimes lead to the person not being able to work for several months, in
cases where the person has completed the 6 year stay in the U.S. on the
H1B Petition.
g. Applicants who have family
members abroad waiting to join them may prefer consular processing, since
the whole family could be interviewed, and obtain their immigrant
(permanent) visas, at the same time.
