Revisiting the Debate : Adjustment of Status vs. Consular Processing Posted Aug 25, 2006 ©MurthyDotCom In each green card case, one must decide whether to file requesting consular processing (CP) or as an adjustment of status (AOS) case. This decision involves the last step of the green card process. There are two possibilities for this last step: adjustment of status within the United States or processing for an immigrant visa at the consulate and then entering the U.S. Since there are two options, it is generally necessary to make a choice between the two procedures. This choice often involves various strategy considerations. ©MurthyDotCom The issues related to this decision have been addressed in previous articles [see our Jan 18, 2002 article, AOS vs. CP in Green Card Processing]. In the ensuing years, however, some of the considerations have changed. The most significant change is retrogression, or the non-availability of visa numbers. This began again on January 1, 2005 for EB3 and on October 1, 2005 for EB2, after a hiatus of a few years. MurthyDotCom and MurthyBulletin readers who are not familiar with this topic should review earlier articles on retrogression that are available by searching our website. Other recent changes are AC21 portability and concurrent filing. While these are not new, there have been clarifications and policy memos issued over time, particularly on AC21. All of these changes, generally tend to make adjustment of status more attractive and eliminate some of the benefits that were previously associated with CP. ©MurthyDotCom Safest Not to Exercise CP/AOS Option in Some Cases ©MurthyDotCom Due to procedural and legal restrictions, some people are not eligible for both AOS and CP. That is, they may not have the option to choose between the two. One should discuss the matter with a qualified, experienced immigration attorney to make this determination. An instance in which there would be no choice is in the case of an individual who is processing a green card case from abroad. One who is living abroad and will not enter the U.S. prior to the completion of her/his green card case must use CP to obtain the immigrant visa from the U.S. consulate abroad. Some individuals who have not maintained status in the U.S. may only be eligible for CP. On the other hand, some who have not maintained status may be eligible for AOS under special provisions, but they would face bars to reentry if they departed the U.S. in an attempt to consular process. Therefore, the first step to be figured out with the help of an attorney is whether one has both options. ©MurthyDotCom Choice of AOS/CP Arises When the PD is Current ©MurthyDotCom With the current, widespread retrogression of priority dates, most employment-based applicants must wait to file their I-485s or proceed to consular processing. With retrogression, once the labor certification is approved, the applicant can only file the I-140, rather than being able to concurrently file the I-140 and I-485 concurrently. This is particularly true of those individuals who are in EB3 and/or are from countries with large numbers of U.S. immigrants (India, China, Mexico, Philippines). It should be noted, also, that CP in no way avoids the retrogression problem. In order for an immigrant visa to be issued at the consulate there must be an immigrant visa number available. ©MurthyDotCom In an employment-based case the question of whether to select CP or AOS arises at the I-140 employer petition stage, even when concurrent filing is not available. One must indicate on the I-140 form itself which way the case will proceed. As explained below, it is possible to change one's mind. It is easier to switch if CP is selected on the I-140 than if AOS is selected, however. ©MurthyDotCom It is our intent to help MurthyDotCom and MurthyBulletin readers decide which is the better option for them, when they reach this stage. What follows is general guidance only, and applicants are encouraged to speak with their immigration attorneys for case-specific advice as to which is the best course of action in their unique circumstances. ©MurthyDotCom Advantages of Adjustment of Status ©MurthyDotCom EAD and AP ©MurthyDotCom In the majority of employment-based green card cases being filed by our firm at the time of this writing, applicants have decided that it is better to select AOS than CP. The primary reason for this is that AOS provides an applicant with several safeguards that do not exist with consular processing. For example, when one files the I-485 s/he is also eligible to file the I-765 application for the Employment Authorization Document (EAD) and the I-131, application for the Advance Parole (AP) travel document. This means that it is not absolutely necessary for the applicant to continue maintaining a dual intent status, such as H or L. It is important to note, however, that the safest course of action is for the I-485 applicant to continue maintaining a status such as H1B, and also to have the EAD and AP as backup, but not to use them unless necessary. For a number of reasons beyond the scope of this article, we at the Murthy Law Firm most often advise that a client maintain H1B or L-1 status, even though an I-485 is pending and s/he could work on the EAD. In some circumstances, however, either by choice or otherwise, foreign nationals rely upon the I-485 and EAD. ©MurthyDotCom An applicant who selects CP, on the other hand, is not eligible to apply for the EAD and AP and must continue maintaining a status such as H1B, or L1A or L1B, etc, otherwise s/he will fall out of status. This means that, in the event that the job is lost, one potentially could be in a much worse situation than that of a person with an I-485 pending. ©MurthyDotCom AC21 Portability Benefits ©MurthyDotCom Another very important and valuable safeguard that is available to an I-485 applicant is that, under certain circumstances, s/he may be able to continue with the green card case even if the job offer from the sponsoring employer is lost. The AC21 law generally allows an I-485 applicant to change to a job category that is the "same or similar," provided the I-485 has been pending for 180 days. While not a requirement in the law, it is also much safer if the I-140 has been approved. Therefore, should an I-485 applicant's sponsoring employer go out of business after the I-485 has been pending for 180 days, for example, the applicant may be able to continue with the green card case, provided that s/he finds "same or similar" employment and otherwise qualifies for AC21. The AC21 law also has advantages in terms of allowing one to change jobs, either with the original sponsoring employer or with a new employer. Given the length of time green card cases often take, particularly with retrogression causing visa numbers to move backwards and forwards, availability of AC21 for job flexibility can often be quite advantageous. This is one of the main reasons that people chose AOS, rather than CP. ©MurthyDotCom In order to take advantage of AC21 portability, an applicant must have filed an I-485. Therefore, AC21 portability is not available to one who selects CP on the I-140 and never files the I-485. In the scenario described above, if a CP applicant's sponsoring employer were to go out of business, the green card case would end at that time. The case is based upon a specific job offer from a specific employer. Without AC21, once that job offer ends, the case ends. In this situation, a new employer would need to start the green card process again from the beginning, with the filing of a new labor certification. The applicant may be able to retain the benefit of the earlier priority date, provided that the I-140 has been approved and not revoked. ©MurthyDotCom The same problem exists if a change of job is desired, either with the same employer or a new employer. Since the case is based upon a specific job offer, this limits the employer's flexibility to promote the individual within the company, as well as limiting the individual's ability to accept alternative job offers. Selecting CP essentially places the individual back into the situation that existed before the AC21 law. Prior to the passage of AC21, many saw their cases fall apart after years of waiting, because companies went out of business or employers terminated employment offers before the green cards were approved. ©MurthyDotCom Advantages of Consular Processing ©MurthyDotCom Potential to be Faster; but Not Necessarily ©MurthyDotCom Several years ago, many applicants were selecting CP because, in most cases, it was faster than AOS. This strategy was particularly viable when, in mid-June 2001, the AC21 law caused all visa numbers to become current. (Cutoff dates and unavailability had existed prior to that time.) Before the advent of concurrent filing, many people chose CP in an effort to obtain their immigrant visas while the visa numbers were available. They had no way of knowing that the numbers would remain available until this current period of retrogression. Additionally, although AC21 was in effect at that time, there were many unclear issues that made applicants reluctant to attempt using portability. As of this writing, the timing advantage of CP has largely disappeared. Moreover, as mentioned above, CP does not provide a short-cut to avoid retrogression. ©MurthyDotCom Retrogression aside, CP is still not necessarily faster than AOS. The USCIS has greatly improved processing times in AOS cases. Currently the reported processing times for employment-based I-485s are between six and ten months. In the recent past, some of the service centers had processing times for I-485s that were closer to the two-year range. Of course, case processing depends upon availability of visa numbers, which is a matter that is out of the USCIS's control. These processing times are only rough guidelines. Any individual case may take much longer or may be processed faster. Security checks can greatly delay certain cases. There are also in-person interviews required in some cases, which can cause further delays because of scheduling limitations. USCIS processing times may fluctuate dramatically from time to time, as well, as evidenced over the past several years. ©MurthyDotCom A very rough estimate of the processing time for a CP case, without retrogression, is approximately six to twelve months. Of course, this is measured from the time when the I-140 is approved. With AOS, if the visa number is available and the I-485 can be filed concurrently, it may not be necessary to wait for the I-140 approval to start the I-485 processing. Thus consular processing timeframes can vary greatly depending upon factors such as processing times at the National Visa Center and interview backlogs at the relevant consulate. ©MurthyDotCom While it is impossible to pinpoint precise processing times for AOS and CP cases, using these very rough estimates it is evident that, in most cases, there is not much difference. CP may prove faster in some instances, and AOS may prove faster in others. In most situations, therefore, the uncertain hope of possibly faster processing times does not seem to justify giving up the safeguards of AOS in favor of CP. ©MurthyDotCom Applicant May Change from CP to AOS; or Vice Versa ©MurthyDotCom It is important to note that selecting AOS or CP on Form I-140 does not lock an applicant to that process. One who selects CP may later decide to file the I-485 and may do so without any sort of permission or extra form. These, generally, go fairly smoothly and there have been times when changes in the law have resulted in large numbers of people changing from consular processing to AOS. There is some risk of problems in these cases, particularly in certain very old cases, but these are very limited. ©MurthyDotCom The process of changing from AOS to CP is more difficult, but it is possible, if needed. In such cases, it is necessary to file Form I-824, Application for Action on Approved Petition, after the I-140 is approved. This notifies the USCIS to transfer the file to the consulate. While I-824 processing times have improved, historically they have taken a very long time. It is sometimes possible to process a CP case prior to the I-824 approval (as an attorney-certified I-140 case), but this is not available for all cases. ©MurthyDotCom Conclusion ©MurthyDotCom We at the Murthy Law Firm hope that this analysis is helpful in the decision between AOS and CP on the I-140 form. Readers in need of case-specific advice, or with further questions, are encouraged to consult with an experienced immigration attorney. Copyright © 2006, MURTHY LAW FIRM. All Rights Reserved
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