FAQs

Comparison between Consular Processing and Adjustment of Status

Individuals often have questions about the choice of securing lawful permanent residence status through Consular Processing (CP) or Adjustment of Status (AOS). This general summary may be of assistance in helping to resolve many of the questions applicants have regarding the two processes. Please note that ultimately the individual must choose one or the other. Both have advantages and disadvantages and there is no right or wrong choice. Please note that once a choice has been made, however, it is not practical to change back to the other process in most cases.

Adjustment of Status
Unlike CP, Adjustment of Status (Form I-485) is filed by mail at the Nebraska Service Center for employment-based cases or alternatively at the National Benefits Center for family-based cases. For a majority of employment based cases, no interview is required and the approval is received in the mail. Advantages of AOS include:

1. No requirement to travel abroad;
2. Right to legal counsel and to appeal any incorrect decision;
3. Ability to remain in the United States and obtain employment authorization for the principal, spouse and children.

Another advantage of AOS is that once an I-485 has been pending for 180 days at the CIS, the green card is "vested" in employment-based cases (not other types) and the individual is entitled to continue their green card case as long as they are still employed in the same or similar job or occupation, but not necessarily with the same employer. Although the CIS has not issued regulations to describe this new provision, the CIS has generally asserted that the I-140 must be approved before an individual may benefit from this law. This window, for the first time, creates assurances and a safety net in cases of loss of a job upon which the green card is based. It is NOT available if CP is chosen.

Consular Processing
CP is a process that it is far more burdensome to complete than AOS. The CP process is completed at a U.S. Embassy or Consulate abroad through the U.S. Department of State (DOS), not the Citizenship and Immigration Services (CIS). The burdens faced in pursuing CP include:

1. Required to travel to one’s home country on short notice in order to complete an interview at the American consulate or embassy;
2. Need for police clearances from each country lived in for six months or more since turning 16 years of age (for a limited number of countries this is waived);
3. Completion of a medical exam in the home country and delays encountered in waiting for those results to be transmitted to the consulate;
4. A complete loss of any right to legal counsel or to challenge a denial. Since the individual is outside the United States, there are no Constitutional protections against arbitrary and irrational conduct or decisions.

CP requires more effort on the part of the individual and family and entails a greater expense and inconvenience associated with the required interview. Please note, however, that our office has processed thousands of individuals through CP without a problem and that a number of clients continue to view CP as viable option to completing green card processing. Moreover, some individuals because of particular circumstances may not be eligible for AOS and therefore will need to pursue CP.

It is also important to note that CP does not stop the limitation on the expiration of temporary visas and that independent employment authorization cannot be obtained while processing through CP.

Processing Times
CP has been around since the beginning of American Immigration Law. It was, for most of the Twentieth Century, the only way to immigrate to America. In the latter half of the Century, AOS was created and that process has had many changes and refinements over the years. Nevertheless, even as AOS became more popular and ultimately the preferred method of obtaining a green card, CP has also continued to exist.

The processing times of CP and AOS vary, depending on the jurisdiction. Both processes are presently experiencing delay due to new enhanced security procedures, background checks and, in CP cases, the National Visa Center's issuance of Immigrant Visa Information Packets and pre-screening of cases. With lengthy AOS cases, it is important to note that a change of employment may be permitted where the application remains unadjudicated for at least 180 days.

Finally, there was a time when we were able to pursue both AOS and CP simultaneously. CIS and DOS have agreed that this is not to be done, again a decision which is probably illegal, but which has resulted in the need to make an election as to which option to pursue and then stick with it.

We hope this summary will be helpful in conducting your personal analysis as to which option to choose.

Go to our Documents page for information on what documentation is required for obtaining permanent residency.

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