wiki.wegreened.comwiki.wegreened.com

for: Pages EB1A EB1B National Interest Waiver Recent Posts Adjustment of Status vs Consular Processing AC21: The American Competitiveness in the Twenty First Century Act of 2000 Cross-Chargeability Priority Date Extraordinary Ability” Definition Recent Comments Archives February 2014 January 2014 Categories Uncategorized Meta Log in Entries RSS Comments RSS WordPress.org Adjustment of Status vs Consular Processing In the United States there are two routes to becoming a permanent resident: adjustment of status or consular processing. An adjustment of status is exactly what the name suggests. An alien in status” in the U.S. can adjust” that status from non-immigrant to immigrant. This option is only available for those already in the United States. The second option, consular processing, is largely for aliens living abroad. The benefits and drawbacks of adjustment of status vs consular processing are several and should be considered thoroughly before proceeding. Adjustment of Status (AOS) Historically, more people receive their green cards through an adjustment of status than consular processing. The benefits of an adjustment of status vs consular processing suggest that for many people this option is indeed preferable. However, only those foreign beneficiaries who are in the United States with a valid non-immigrant visa may apply through this route. Usually they have the option of applying through an adjustment of status or through consular processing. Those petitioning through an employment-based preference often hold an H1B non-immigrant visa, which allows them to work in the United States. Applying for permanent residency through an employment-based petition (I-140) requires the foreign beneficiary to decide at the time of filing which route to residency they wish to pursue. * There are several considerations to take into account when making this decision; consulting a reputable immigration attorney is advisable. Below are outlined the benefits and drawbacks of an adjustment of status vs consular processing for those applying through an employment-based visa. Benefits General Concurrent filing : For beneficiaries with current priority dates, the immigrant petition ( Form I-140 ) can be filed concurrently with the application for a green card ( Form I-485 ). Therefore, as long as the I-140 is approved and the foreign beneficiary is qualified, the I-485 is often evaluated at the same time. Recourse : A green card application that is denied may be reviewed and/or appealed. Enlisting the advocacy of a representative or congressman is also an option. Therefore, there is some recourse available to foreign beneficiaries who choose this route. USCIS : Adjustment of status cases are handled exclusively by the United States Citizenship and Immigration Service (USCIS) . Work EAD : Foreign beneficiaries and their qualified family members that apply for adjustment of status are eligible for Employment Authorization Documents (EAD) . This is a work permit that is particularly useful for spouses in the United States on H2 dependent visas that do not allow them to work. When included with the application for adjustment of status, there is no additional fee. The one drawback is that in the event the I-485 application is denied, employment authorization is immediately revoked. For this reason it is advisable to maintain H1B status. H1B 7 th year extension : Generally, an H1B non-immigrant visa is limited to 6 years; however, under the American Competitiveness in the Twenty First Century Act of 2000 (AC21) , two circumstances qualify for an exception. The first is when an I-140 has been approved, but the foreign beneficiary is unable to apply for an adjustment of status because his or her priority date is not current. In this instance, the H1B may be extended in increments of 3 years. The second situation is when the petition has not yet been adjudicated, but 365 days have passed since the petitioner filed either the application for labor certification or Form I-140. In this case, the H1B may be extended in increments of 1 year until a decision is made. H1B Portability : The AC21 also provides for an instance in which an adjustment of status application was filed over 180 days and remains unadjudicated. When this occurs, the beneficiary may switch employers without jeopardizing his or her application, provided the job is in the same field for which the H1B was approved. Travel Advance parole : An advance parole ( Form I-131 ) allows a foreign national without an immigrant or non-immigrant visa to re-enter the United States. The advance parole and the EAD go hand-in-hand, because an advance parole only allows you to re-enter the country, not to work. H1B holders do not necessarily need an advance parole to travel abroad, as long as the H1B remains valid. However, if a foreign beneficiary does not have an H1B visa stamp in his or her passport or that stamp has expired, the foreign beneficiary will need to apply for an H1B visa outside the country at a U.S. consulate or embassy. It is wise to maintain advance parole in case the H1B visa is denied; the foreign beneficiary will be able to re-enter the country using the advance parole. Advance parole expires a year from issue and when a request for advance parole is filed concurrently with an adjustment of status, there is no additional cost. No admissionability issues : When applying for a green card using an adjustment of status, there is no requirement for the foreign beneficiary to leave the country. This eliminates having to deal with any complications from re-entering the country. Even with advance parole and pending adjustment of status, there are instances when it is possible for a foreign beneficiary to be denied entry into the U.S. With an adjustment of status, if the foreign beneficiary wishes, he or she can stay in the country until the green card application is approved. Application process Interview : Generally speaking, the interview required for permanent residency approval is waived for adjustment of status cases. When it is not, the foreign beneficiary has the right to have counsel present. The interview is also usually held at a district office, which means the foreign beneficiary does not have to travel far. Medical exam : An application for green card commonly requires a medical examination. When processing the application as an adjustment of status, the foreign beneficiary or beneficiaries must use a USCIS-approved doctor. However, the foreign beneficiary usually need not travel far as several approved doctors are frequently available in the foreign beneficiary’s area. Drawbacks General Processing time : Historically, adjustment of status vs consular processing has involved longer processing times. Adjustment of status cases processing time can take anywhere from several months to several years longer to process than consular processing. Recently, however, this trend does not seem to be as common as it once was. USCIS processing times vary depending on the service center, but, in general, have conformed to their goal of 6 months. Concurrent filing risks : If the foreign beneficiary’s priority date is current, filing an I-485 concurrently with an I-140 can be advantageous; however, it also has its risks. If the I-140 is denied, the I-485 will also be denied. This means a loss of the green card application fee, along with any benefits associated with the I-485. This includes EADs and advance parole, which can result in the foreign beneficiary becoming out of status or violating his or her conditions of being in the country. Changes in policy : Despite the many advantages of utilizing adjustment of status vs consular processing, there is always the change that the USCIS will change its policies. This can happen any time through a policy memorandum, without the need for an amendment to the law. Application Process Filing fee : Without consideration for the cost of travel, adjustment of status vs...