Once labor certification is approved, or you are otherwise eligible to file an I-140 petition
for classification as an immigrant worker, you must decide whether to file to adjust status
or to process permanent residence at a U.S. consulate abroad. Neither adjustment of
status, nor consular visa processing can be processed until a visa number is available.
We usually recommend adjustment of status ("AOS") although there are also some
reasons why consular visa processing might be preferred ("CVP"). AOS is the final step
in obtaining permanent residence (the "green card") without leaving the U.S. Generally
speaking, a person is not eligible for AOS unless they are in valid non-immigrant status
in the U.S. There are some exceptions to this rule and you should consult with us if
there are status issues in your case.
In the past, clients sometimes preferred CVP because it is typically faster than AOS.
This is still generally true. AOS is typically taking 18-30 months to complete, while CVP
usually takes 6 months to one year, depending on the country. Once final approval of
permanent residence is received, an immigrant is eligible to apply for naturalization five
years later. Upon naturalization, an immigrant can petition for permanent residence for
parents, so sometimes the time factor is crucial.
The disadvantages to CVP are many, however:
-
You must travel to your home country to apply for and receive permanent
residence. This would also include dependent family members who are obtaining
permanent residence with you. Sometimes this cost is a factor.
- Consulates can be arbitrary. So can the USCIS, but generally, we are not able to
assist much if there is a problem at the consulate. There is no appeal from a
decision of a consular official. There are also mandatory security checks now for
each case and you may find significant delays outside the U.S. waiting for the
security check to clear.
-
You need to maintain non-immigrant status in the U.S. and work authorization until
the time you leave for your consular interview. If it is an employment based case,
then you must still have a permanent offer from your employer at the time you go
to apply for your visa. If you lose employment with the sponsoring employer before
your visa interview, your case will be denied.
Even though it takes longer to adjust status, there are several benefits.
- You can file to adjust status with the I-140 petition or while it is pending (provided
a visa number is available), but consular processing will not begin until after the I-
140 is approved.
-
180 days after the AOS application is filed (and provided the I-140 has been
approved), you have "portability," meaning that you can change employers
without it affecting your permanent resident case as long as you are going to
another employer with the same or similar occupation. So for example, if you did
CVP, it might take a year or more for the I-140 to be approved, then another 6 to
12 months for the CVP to be approved (provided a visa number is available). If
you are laid off even one day before the CVP interview, you would be ineligible to
receive approval. If you file to AOS with your I-140, and the I-140 is approved,
once the AOS has been pending for 180 days, you have portability, meaning that
you can still have your case approved if you have another job in the same
occupation by the conclusion of the case.
-
Once you file AOS application, you no longer have to maintain a non-immigrant
status in the U.S., but do have to maintain work authorization in order to continue
working. You are eligible to obtain an unrestricted work card, called an
employment authorization document ("EAD") and family members eligible to adjust
status with you can also obtain EAD's. The EAD's are required to be issued within
90 days after filing, so if the goal is work authorization for family members as soon
as possible, AOS makes more sense.
