The purpose of this page is to address the advantages and disadvantages of Adjustment of Status and Consular Processing. There are various factors that need to be considered, including the particular procedures of each process, the cost, the time and the risks involved in each process.

I. TIME

In regard to the time involved in each process, please note that Adjustment of Status Applications are taking from 8-18 months to process. In almost all cases, Consular Processing would be the quicker route. For example, the Consulates in London, Manila, South Africa, Chennai, and Mumbai all schedule interviews within 2 to 5 months after receiving Packet III. It is taking approximately 60 days from the approval of the I-140 until the issuance of the Packet III.

The procedure for the filing of an application through our office varies depending upon whether the process involves adjustment of status or consular processing. Recently, we have been filing I-485 Applications in less than one month from the date that the I-140 petition is approved, except in cases where there has been a delay on the part of the employee. For example, sometimes employees decide to hold off on the filing of the adjustment of status due to their inability to schedule a medical exam, plans of impending travel, plans to marry in the near future, or sometimes it is simply a matter of waiting until they have accumulated the funds to pay for all the filing fees for all of the family members.

II. CONSULATE NOTIFICATION (I-824)

The procedure and timeframe for consular processing varies depending upon whether the National Visa Center has to be notified or whether the consulate will accept the application without the notification. Generally, if a person decides, after the I-140 approval, to do consular processing rather than Adjustment of Status, the required route is to file an I-824, Application for Action on an Approved Petition, with the INS. Once that is approved, the INS then sends notice to the National Visa Center in Portsmouth, New Hampshire, which then notifies the particular consulate and sends Packet 3 to the employee (Packet 3 consists of Optional Form 169, Optional Form 230, Form DSL-1083, Optional Form 167, and Form I-134). The problem is that the processing of the I-824s are extremely backlogged mainly because that form is used for various purposes ranging from Consular notification to a change in a previously approved approval notice, such as an incorrect date of birth or name spelling on the approval. As such, the INS typically views those as lower priority petitions. The California Service Center is taking more than a year on I-824 applications, Vermont is taking approximately 3 to 4 months on I-824s, Texas is taking approximately one year and Nebraska is taking almost two years on those applications. There are instances where the INS will expedite the I-824, such as an aging-out case, but of course those are very rare.

When an I-824 is required, it takes away all of the advantages of consular processing. Because some consulates are realizing that the I-824 processing times at the Service Centers are unreasonably lengthy, sometimes the Consulates have opted to allow consular processing in their discretion without the requirement of the notification from the National Visa Center. Those who do so are using a process known as ACI-140 (attorney certified I-140). Under this procedure, the attorney sends to the Consulate a certified copy of the I-140 approval notice and I-140 petition, a cover letter listing the desire for consular processing, proof that the person qualifies for the consulate for which they are applying, Form OF-169 and Form OF-230 Part 1 for the primary applicant and each dependant who will immigrate with the primary applicant. When the Consulate accepts the ACI-140 petition, they will send Packet 3 to the employee.

In regard to ACI-140, there are a few things to keep in mind. First, not all consulates recognize it. For example, at the present time, Chennai, and Singapore do not accept ACI-140. Second, as more people try to use this route, those who are currently accepting ACI-140s may later switch to an approach where they demand the I-824. Third, some of the consulates who do accept ACI-140 do so only on grounds of hardship. Some Consulates consider a hardship to be a situation where the person would have to undergo a long Adjustment of Status process without the hope of a promotion in the job. In contrast, some consulates are taking to a more traditional approach of hardship such as the Consulate in Tokyo, Japan, which has sent me written confirmation that they will do it only in cases of an aging-out child.

III. MISCELLANEOUS ISSUES

While each consulate has its own nuances the procedures for consular processing are very similar. In all cases, the medical exams have to be completed by a designated doctor in that country. In London, the medical exams are completed the same day as the interview. However, in Johannesburg, Chennai, and Mumbai, the medical exams have to be completed at least two weeks before the interview. Essentially, this means the employee will need to spend approximately three weeks overseas or will require two trips overseas.

In most cases, interview notices are generated approximately 30 days prior to the actual interview so as a practical matter, a family would need to depart the U.S. immediately upon receipt of an interview notice in order to have plenty of time to complete the medical exam.

In addition to the general procedural differences between the two processes, there are more stringent requirements in consular processing. For example, in consular processing, the medical examination has to be done by a doctor in that jurisdiction as the consulate will not accept medical examinations from a United States doctor. In addition, it is easier to obtain waivers of certain medical grounds for exclusion, such as HIV, while the person is in the U.S. Consulates also require police certificates for all applicants 16 years or older covering all periods that they have resided in a foreign country when they chose to do consular processing. This requirement does not exist in the case of adjustment of status. The consular officers also require a certified copy of any military records, whereas this is not required in adjustment of status applications. The consulate in Manila will only accept birth certificates issued by the National Statistics Office. A person who does not have all the documents at the time of the interview will need to appear for a second interview

IV. COSTS

Another issue that should be analyzed is the cost associated with each process. In consular processing, the visa application fee is $260.00 for each person, and an additional $65.00 for the issuance of the visa. An adjustment of status application, has a filing fee of $220.00 plus a $25.00 fingerprint fee for each applicant over the age of 14 and $160.00 for each applicant under the age of 14. However, the major monetary difference is in regard to the travel overseas for the visa interview. Obviously, the price for flights vary significantly, but are almost always in excess of $1,000.00 per person when traveling overseas. This can be burdensome especially where there are several family members.

Another factor that may indirectly affect the costs to the employer and employee is the time that will be required to be spent outside of the United States. During the adjustment of status process, a person can continue their employment in the United States while the case is processing. In consular processing cases, they are required to be out of the U.S. for approximately a month, assuming no problems arise in their case. If problems do arise in their case, they may need to stay overseas longer than anticipated. Alternatively, they could, in most cases, come back to the U.S. but would need to travel to the consulate again for a follow-up interview. Obviously, this adds to additional time away from work and additional expenses. In addition, for employees who have school age children, this would require the child's absence from school.

V. RISKS

The major factor in deciding whether to choose adjustment of status or consular processing is the risk involved. By far, consular processing is much more risky than the adjustment of status process. First, consular processing provides less opportunity for attorney assistance. In the adjustment of status process, the attorneys prepare the application and file it with the INS. If the INS has a Request for Additional Evidence or any issues in the case, the information is sent to the attorney at which time the attorney can review the issues with the client and submit a response. In consular processing, the consulates do not allow the person to be represented by an attorney during the interview. Sometimes the attorney can stay in the waiting room and address any questions that the applicant has, but is not allowed to actually represent them at the interview.

Second, consular processing involves a personal interview whereas the adjustment of status does not. Of course, any time that there is a personal interview, there is more risk that the applicant will say something unfavorable to his case. It also provides the officer with more time to go in depth into the applicant's immigration history or any issues of excludability. For example, if the employee's job title or job duties have changed at all since the filing of the labor certification then there is more of a chance that the consulate will focus on this issue and could deny the application. In contrast, in adjustment of status the INS does not delve into the exact job duties, (i.e. specific tools, utilities, software) but rather focuses on the job title, salary, and whether there is a continued offer of employment.

Third, consular officers sometimes work with a mindset of distrust because they are accustomed to seeing fraudulent cases. Keep in mind that Manila, Mumbai, and Chennai are high fraud posts.

Fourth, anyone who has been unlawfully present in the United States and is subject to the 3/10 year bar would immediately trigger that bar once he departed the U.S. Clearly, a person in this situation should not even consider consular processing as such as decision would be fatal.

Finally, and most importantly, a denial of a visa at a Consulate post is non-reviewable. Granted, when a consulate officer intends to deny the decision, it is referred to the Principal Consular Officer before a final decision is made. However, in the case of adjustment of status, whenever the INS has an intent to deny the application, it will send a Notice of Intent to Deny, at which time the applicant, through his attorney, has a chance to present evidence arguing against the denial. Even if the case is denied through adjustment of status there are various appellate procedures to have that decision reversed. This is not the case in consular processing as there is non-reviewability of the consular decisions.

VI. CONCLUSION

In sum, consular processing can be advantageous in some situations. However, the decision to do consular processing should be made on a case-by-case basis based upon the particular consulate and the facts of each case.