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.

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.

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