There are several advantages and disadvantages to the process of Adjusting your Status from within the United States or going through Consular Processing from abroad after deciding to depart the country. Here we break down the pros and cons of each process and provide some tips for completing either option.
If you must file an I-140 before making a decision to adjust your status or depart for abroad consular processing, make sure to select the consular processing option in Part 4 Question 1 of Form I-140. This will allow for both options to remain available to you as it is much easier to switch to Adjustment of Status after selecting Consular Processing than it is to change to Consular Processing after selecting Adjustment of Status.
If you decide Adjustment of Status …
Make sure the forms are carefully drafted with the correct filing fees and supporting documentation. Be aware that processing delays may still occur.
Employment-based Adjustment of Status, unlike most family-based cases, is less likely to require an interview.
Adjustment of Status – Advantages
Adjustment of Status – Disadvantages
• Predictability of timing and government communication
• Increased access to manage any problems
• AC-21 portability (ability to change jobs before Green Card is approved or to extend H-1B beyond the 6-year limit)
• EAD/AP for entire family – Employment Authorization with Advance Parole permission (allowing you to travel and return to the U.S. without abandoning your status)
• Cases regularly approved without interview
• Burden to prove maintenance of status and continued employment authorization
• Possibility of visa retrogression while application is pending (visa retrogression occurs when more people apply for a visa in a particular category or country than there are visas available for that month)
• Filing fees cost more
If you decide to depart the U.S for Consular Processing …
Make sure that all supporting documents, such as birth and marriage certificates, comply with the correct Country Documents listing in the Foreign Affairs Manual and/or the State Department website.
Consular Processing – Advantages
Consular Processing – Disadvantages
• Filing Fees are lower
• Some personal or family unity advantages
• Expedited processing available for spouses of U.S. citizens who are stationed abroad
• Must process with National Visa Center
• Travel expense
• Less access to consular officials if problems arise
• Consular discretion and non-reviewability
• I-140 re-adjudication/revocation
• In-person interview required; no counsel present
• Possibility of dangerous country conditions
• Police certificates required
• Mandatory referral to panel physician for DUIs (Driving Under the Influence)
Get Help!
Completing these forms and supporting documentation requirements can be a complicated task. Our knowledgeable and experienced attorneys at Berardi Immigration Law are ready to assist you with the process. Please contact our office to schedule a consultation with one of our attorneys today!
