The final stage of every green card case is when the applicant must choose between consular processing (CP) or an adjustment of status (AOS) on the I-140 form. Consular processing allows applicants to obtain an immigrant visa at a foreign U.S. consulate or embassy, while requesting the adjustment of status will allow applicants enter the U.S. without an immigrant visa. Therefore, most applicants prefer the convenience of the AOS option. However, each option has its own ineligibility restrictions, such as CP filing being required for individuals who have failed to maintain proper status in the U.S.
In addition to these restrictions, most employment-based applicants must now wait to file their I-485 due to retrogression of priority dates. As a result, more and more applicants choose to adjustment of status (AOS) because of the work flexibility offered. Due to the complex nature of both CP and AOS case processing, it is highly recommended to consult with an experienced immigration attorney.
Two Paths to Permanent Resident Status
The Immigration and Nationality Act (INA) allows foreign national applicants to choose their path to permanent resident status, commonly referred to as getting a green card. Every applicant must decide if they wish to request consular processing (CP) or an adjustment of status (AOS). Eligibility for both is generally based on petitions filed by a family member or employer. There are also special classes of immigrants and humanitarian petitions available. Consular processing (CP) allows eligible applicants to obtain an immigrant visa at a foreign U.S. consulate or embassy. On the other hand, the adjustment of status (AOS) options allows eligible applicants to legally enter the U.S. without having to apply for an immigrant visa abroad. These two options are the last step in the green card process and require the applicant to make an appropriate choice based on their individual situation.
While there has been continual debate within the immigration community as to which option is best, recent changes have made the adjustment of status (AOS) more appealing than the historically popular consular processing (CP) option. Please note that the following general guidance is not intended as legal counsel. Applicants should consider consulting with their immigration attorney for case-specific advice and assistance.
CP/AOS Ineligibility Exceptions
Due to legal and procedural and restrictions, certain people are ineligible for choosing between AOS and CP. That is, certain applicants, based on their current status, may not be allowed to choose between the two options. For example, if a foreign national living abroad cannot enter the U.S. prior to the completion of their green card case, they must chose CP to obtain the immigrant visa from the U.S. consulate abroad. In addition to this, individuals who have failed to maintain proper status in the U.S. may only be eligible for CP.
However, there are special AOS exceptions for individuals who have failed to maintain proper status. Nevertheless, they would experience stricter re-entry requirements when attempting CP at an American consulate or embassy abroad. If you have any questions concerning your eligibility options for CP or AOS, consider consulting an experienced immigration attorney.
CP/AOS Option during the I-140 Petition
Due to the current, widespread retrogression of priority dates, many employment-based applicants must now wait to file their I-485s or choose to proceed to consular processing. Retrogression means that once the labor certification is approved, the applicant can only file the I-140, instead of being able to simultaneously file the I-140 and I-485. This primarily applies to EB2 or EB3 applicants from China and India. Please note that CP does not reduce or avoid the problem of retrogression. This is because an immigrant visa number must be available in order for an immigrant visa to be issued at the consulate. Keep in mind that the employer must indicate on the I-140 form which processing option they want. While employers are technically allowed to change their choice later, it is much easier to switch from CP, than AOS.
Adjustment of Status vs. Consular Processing
Our firm has noted that most applicants have historically chosen AOS over CP. This is because AOS provides the applicant with several benefits and safeguards which do not exist with CP. For example, I-485 applicants are also eligible to file applications to obtain an employment authorization document (EAD) and an advance parole (AP) travel document. As a result, the applicant would not be required to maintain non-immigrant status, such as H or L. However, the safest course for the I-485 applicant is to continue maintaining non-immigrant status, such as H1B. Therefore, our firm continually advises clients with a pending I-485 to maintain H1B or L-1 status and refrain from applying for work through an EAD.
However, there are exceptions and certain applicants will be required to rely solely on the I-485 and EAD. In addition to this, CP applicants are ineligible to apply for the EAD and AP and must continue maintaining H1B, L1A or L1B status to avoid falling out of status. Any applicant that falls out of status and accrues over 180 days of unlawful presence in the U.S. will face serious legal consequences. As a result, becoming unemployed could result in worse consequences for an applicant with only a pending I-485.
Benefits of AC21 Portability
I-485 applicants enjoy another useful safeguard that may help them continue the green card application process without the original job offer from the sponsoring employer. The American Competitiveness in the 21st Century Act (AC21) allows I-485 applicants to change employment to a similar occupational classification. Please note that job similarity is not restricted to the job title. That is, the job duties must be generally similar according to the U.S. Department of Labor’s occupational classification system.
The basic requirement for the AC21 is that the I-485 application must have been pending for at least 180 days. AC21 portability is not available to those who select CP on the I-140 and never file the I-485. If their sponsoring employer were to go out of business, the green card process would end as a result. In addition to this, if the applicant who selects CP desires to change to a new employer, they will face job transfer restrictions. Therefore, the AC21 law offers excellent job flexibility, which is why many applicants chose AOS instead of CP.
Potential Consular Processing Advantages
Previously, many applicants selected CP because it was faster than AOS. However, concurrent filing has changed the timing advantages of CP. As of this writing, AOS offers no timing benefits or a short-cut to avoid retrogression. In fact, CP processing typically takes the same amount of time as AOS because the USCIS has improved AOS processing times. While the ideal processing time is six months, each case processing depends on visa number availability, the case’s individual factors and if a face-to-face interview is required.
Therefore, the normal amount of processing time for a CP case without retrogression is about six to 12 months. However, if the visa number is available and the I-485 can be filed concurrently, AOS applications may skip the wait for the I-140 approval. This of course is influenced by a variety of factors, such as National Visa Center processing times and interview backlogs at the relevant consulate. Every situation is therefore unique and it is difficult to pinpoint processing times for AOS and CP cases.
Changing between CP and AOS
Please note that selecting either CP or AOS on the I-140 form does not commit an applicant to that process. Anyone who selects CP may later file the I-485 without filing any extra forms and expect a smooth process. Historically, there have been times when legal changes resulted in many people changing from CP to AOS. The change is considered safe as there is only limited risk for very old cases. On the other hand, the process of changing from AOS to CP is more difficult because applicants are generally required to file an application for action on approved petition (I-824) after the I-140 is approved.
This will notify the USCIS to transfer the application file to the consulate. However, I-824 processing times fluctuate and have also experienced historical periods of a very slow approval times. Keep in mind that it is sometimes possible to process a CP case prior to the I-824 approval as an attorney-certified I-140 case. However, this only applies to certain cases.
Regardless of whether the applicant chooses to request consular processing (CP) or an adjustment of status (AOS), there are specific guidelines and requirements for each choice. There are also CP and AOS ineligibility exceptions, but also CP and AOS option available during the I-140 Petition that every applicant should be aware of. In addition to this, AC21 portability offers I-485 applicants an important processing safeguard. It is possible to change between CP and AOS, but changing from AOS to CP is considered more difficult and risky.
Pride Immigration Law Firm’s experienced immigration attorneys are always available to provide assistance with deciding between CP and AOS on the I-140 form. Applicants needing case specific advice should set up an initial consultation by calling our office or by contacting our firm online. We look forward to working with you!
Beeraj Patel, Esq.
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