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Consular Processing Verses Adjustment Of Status

Discussion in 'General immigration questions' started by Ron Gotcher, Jul 10, 2014.

  1. Ron Gotcher

    Ron Gotcher Attorney at Law

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    AOS and CP – what are the relative merits

    The conventional wisdom on the Internet holds that the only way to obtain lawful permanent residence is through the procedure known as adjustment of status (AOS). This is not accurate. Most people who immigrate to the United States do so through what is known as consular processing (CP). While the majority (about 85%) of employment based applicants use AOS, it is not required. In many instances, perhaps the majority of cases, CP provides a faster and easier route to lawful permanent resident (LPR) status. Since this issue has not been discussed in this newsletter in the past several years, it is worthwhile to revisit it.
    Both AOS and CP have advantages and disadvantages. The “best” choice for you is the one that provides you with the most benefits and the fewest problems. Depending upon the unique facts and circumstances of your case, that could be either AOS or CP. Let’s take a look at both.

    Adjustment of status

    AOS offers a number of advantages:
    • You do not have to leave the US for your final interview.
    • Presently, if your priority date is “current” you may file a preference petition (I-130 or I-140) concurrently with your I-485 AOS application.
    • You qualify for unrestricted employment authorization (EAD) and travel permission, advance parole (AP).
    • Your dependents also qualify for EAD and AP benefits.
    • If you are employment based, you qualify for job portability after your AOS application has been on file for six months.
    These advantages are offset by a number of disadvantages:
    • The eligibility rules disqualify many people who have violated their nonimmigrant status at any time in the past.
    • It is easy to accumulate more than 180 days of disqualifying status violations after filing for AOS, resulting in an automatic denial.
    • You may not file for AOS until the first day of the month in which your priority date becomes current.
    • Despite USCIS assurances to the contrary, average AOS processing is still taking more than one year (assuming a current priority date) and three year processing is not at all unusual.
    • The approval rate for AOS is slightly less than 80%.
    • There is no appeal from a denial of AOS by the USCIS.
    • The filing fee for AOS is $1,080.
    • You have to deal with the USCIS – arguably the least competent and most customer-hostile agency in the entire federal government.
    Consular Processing

    CP also offers a number of advantages:
    • Past status violations (other than 180 days or more of unlawful presence) are of no consequence and will not result in a denial of a visa.
    • The National Visa Center (NVC) will begin working on your case as soon as your petition is approved. If your priority date is backlogged, the NVC will continue to work on your case so that you may be scheduled for an immigrant visa interview in the month following the first month in which your priority date becomes current. This generally results in a green card being issued in less than 60 days following the first day that your priority date becomes current.
    • In cases where your priority date is current at the time your petition is approved, the NVC generally takes about 90 days to complete the processing of your application and schedule you for an interview.The approval rate for consular immigrant visa applications is close to 99%. This is because they pre-screen cases carefully before summoning applicants for interviews.
    • While there is no formal appeal from a denial of an immigrant visa, if the denial was based on an improper standard of law, review by the Visa Office is available and if they agree that an improper standard was applied, they will order the visa issued.
    • The filing fee for a relative petition based immigrant visa is $420 and the filing fee for an employment based immigrant visa is $405.
    Disadvantages of consular processing:
    • You must go abroad for your final interview (though you only need to be overseas about ten days).
    • Concurrent filing is not available; you have to wait until your preference petition has been approved before the NVC will start working on your case.
    • “I-140 portability” is not available (at the same time, consular processing is usually complete long before the six month waiting period required for AOS).
    • Neither advance parole nor work authorization is available to CP applicants.
    For people with backlogged priority dates (PD), the reasons to elect consular processing very heavily outweigh the reasons to do AOS. If your PD is backlogged, the NVC will continue to work on your case and will process it right up to the point of ordering a visa. When your PD becomes current, you will be scheduled for a final visa interview shortly thereafter, generally the month after the first month in which your PD becomes current.

    With AOS, you can’t even file for AOS until the first day of the first month in which y our PD is current. You won’t get your EAD/AP card until about three months after filing (or about a month after you would have gotten your green card through consular processing). While you will qualify for I-140 portability after six months, this is four months after you would have gotten your green card through consular processing.
    Finally, and most importantly, when the Visa Office accelerates cutoff date movement in the summer, the people who typically wind up getting green cards as a result of this rapid (and temporary) movement are consular processing applicants, not AOS applicants.

    For example, it appears that the Visa Office is about to announce substantial forward movement in the India EB2 cutoff date next month. When they do, the principal beneficiaries of this movement will be those individuals who have designated their cases for consular immigrant visa processing and who will see their priority dates becomes current in May. If they have followed all instructions from the NVC, many of them can expect to get their green cards in June.
    .
     
    Last edited: Jul 10, 2014
  2. s_gan

    s_gan Super Moderator

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    Thanks Ron.

    What happens if PD gets retrogressed before my interview ?

    1. Before travel
    2. While Overseas
     
  3. Ron Gotcher

    Ron Gotcher Attorney at Law

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    That doesn't happen. When they schedule an interview, they reserve a visa number.
     
  4. s_gan

    s_gan Super Moderator

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    Thanks Ron. I'm going to file I-824
     
  5. s_gan

    s_gan Super Moderator

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    I have one more question. Do all CP applicants who are likely to be current get notified for an interview or is it random ?
     
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The way it works is that if your file is "documentarily complete" when your PD becomes current, they will schedule you for an interview. One of the big differences between the USCIS and the State Department is that the USCIS system is fixed, while the State Department's system is almost infinitely scalable. They can take on huge application surges, if necessary.
     
  7. Sameeksha shukla

    Sameeksha shukla New Member

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    My case got completed on 24 June at NVC and my PD is also current. Mine is CP from India,mumbai.
    Still I have heard from NVC regarding interview schedule, they are simply asking us to wait, dont know what I am waiting for.
     
  8. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Have you checked your file number against the appointment schedule posted on the website for the U.S. consulate in Mumbai?
     
  9. Sameeksha shukla

    Sameeksha shukla New Member

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    It's only updated till June interviews. Not for July and August.
     
  10. s_gan

    s_gan Super Moderator

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    Is this correct ?

    >>If due to unforeseen difficulties that your stay in India has to be extended, your ability to reenter the US and your work will be >>impacted. Additionally, Consular Processing does not provide the same kind of benefits (no EAD and Advance Parole while the >>case is pending). The process is more complicated and the processing time takes substantially longer than AOS since it involves 2 >>government agencies (National Visa Center and U.S. Consulate in India) as opposed to just dealing with USCIS.
     
  11. Ron Gotcher

    Ron Gotcher Attorney at Law

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    And if your car spontaneously explodes on the freeway you are really out of luck, but how often does that happen? The fact is that employment based CP applications have a better than 99% approval rate while AOS has a less than 79% approval rate. Contrary to popular belief, there is NO appeal from a denial of AOS. On average, all documents being complete, AOS takes four to twelve months; CP takes less than three months.
     
  12. s_gan

    s_gan Super Moderator

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    Thanks Ron. I don't understand why some firms use these tactics ....
     
  13. Ron Gotcher

    Ron Gotcher Attorney at Law

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    A lot of lawyers simply don't understand consular processing. Others are simply afraid of - what for them is - the unknown. Finally, there is a small group that knows that they can make more money by doing extensions if their clients do AOS.
     
  14. s_gan

    s_gan Super Moderator

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    Can the employer deny permission to do Consular Processing ?
     
  15. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The initial designation is on form I-140, which the employer files. If they designate AOS, then you will need to file an I-824 to have the file moved to the NVC.
     
  16. s_gan

    s_gan Super Moderator

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    Sorry, I am asking too many questions. I should have been specific.

    Can the employer deny approval to file I-824
     
  17. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I'm not sure I understand the question. The bottom line is that eventually the employee can determine where the final application is filed.
     
  18. s_gan

    s_gan Super Moderator

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    Thanks Ron.

    According to my employer's attorney my employer should authorize them to file I-824 on my behalf as CP involves certain "risks"

    :)
     
  19. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Each case has to be looked at on its own merits, but all things being equal, a case that is processed through CP has a higher probability of success and will likely be complete much, much faster. If there is a "risk" in a particular case, then it will be present whether the applicant applies here or abroad. The fact remains that there are fewer grounds for refusal in CP cases than in AOS cases.
     

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