Posted May 06, 2002
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The attorneys at The Law Office of Sheela Murthy, P.C. are often asked: Should I choose Adjustment of Status or Consular Processing? For our MurthyDotCom readers, we decided to address this issue head on!
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As a result of the lengthy processing times for Adjustment of Status (Form I-485), many who are present in the U.S. and who are eligible to adjust status seriously consider using the consular alternative - that is, the option of processing for their permanent residency through a U.S. consulate abroad instead of with the INS in the U.S.
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These are some factors to consider in making a decision :
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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.
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b. If the foreign national applicant has already applied for the adjustment of status but now wishes to pursue the option of consular processing, s/he may need to withdraw the adjustment of status application. One 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, 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.)
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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.
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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.
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d. Adjustment of Status usually takes about 15 to 18 months and sometimes as long as 3 years. 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!
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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 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 with the children attending U.S. schools, etc.
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f. With the AC21 law of October 2000, adjustment of status has become much more attractive. If the I-485 is pending 180 days, then the case can still be approved based upon a new, similar job offer with a different employer. This provision gives needed security to people who fear being laid off.
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g. There are a variety of problems, major or minor, that can surface irrespective of one's choice of process. If one opts for consular processing and problems occur while s/he 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. In cases where the person has completed the 6-year stay in the U.S. on the H1B Petition, this could lead to the applicant's not being able to work for several months.
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h. 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.
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If you are struggling with this choice and are seeking an attorney for advice on your options, you should carefully consider these and other relevant issues that may apply in your particular circumstance. If you do not have an attorney, you may contact The Law Office of Sheela Murthy, P.C. to guide you with these or other immigration law related issues.