||Frequently Asked Questions
What Is the Difference Between Employment-Based Consular Processing vs. Adjustment of Status?
There are two options to consider when one approaches the final stage of permanent residency. One option involves filing the application for permanent resident status in the U.S. (AOS processing) along with forms for a new type of work authorization and travel authorization.
The other option is to process the application through the embassy or consulate in one’s home country. There are advantages and disadvantages related to each option. Generally, the documentation that is required for both options is the same with some exceptions.
OPTION ONE: FILING FOR PERMANENT RESIDENCY IN THE U.S.
1. Copies of all pages of passports used, while in the U.S. (excluding blank pages)
2. Latest I-94
3. All approval notices issued by the USCIS showing maintenance of status. (e.g. H-1B, L-1 Approval Notices, IAP-66s, I-20s)
4. Birth Certificate issued by the government, with translation if not in English
5. If married, Marriage Certificate issued by the government, with translation if not in English
6. If previously married, final divorce decree or death certificate, with translation if not in English
7. Three most recent paycheck records for principal applicant.
8. Letter verifying applicant’s employment with evidence of the sponsor’s income. Most recent W-2(s) and income tax filing. Note that recently some immigration offices have requested IRS certified copies of tax returns. For more information on how to obtain a certified copy, please see www.irs.gov or call 1-800-829-1040.
9. Court/Prison Records for those convicted of a crime. Certified copy of each court record and any prison record is required.
10. A medical exam is required. Each applicant will need to submit a completed, sealed medical examination from a designated civil surgeon (authorized immigration doctors can be found online at https://egov.immigration.gov/crisgwi/go?action=offices.type&OfficeLocator.office_type=CIV). The forms that you need for the examination – Form 693 and Vaccination Supplement – will be found online at http://www.uscis.gov/i-693.
11. Fingerprinting is scheduled by the USCIS so that the FBI/CIA, etc. can do a background check. Appointments are scheduled after filing.
Once we file the I 485 application for permanent residency, we also file for work authorization and travel authorization that can be used while waiting for the I 485 to be adjudicated by the USCIS. It is currently taking approximately 75 days for the new work and travel authorization to be issued. These documents are issued for periods of one year and renewable annually as long as the I-485 application is pending review. USCIS is currently taking approximately 24 months to review I-485 applications for permanent residency. However, the agency’s goal is to reduce this time to 6 months.
OPTION TWO: PROCESSING THROUGH THE EMBASSY OR CONSULATE OVERSEAS
1 through 10 above, plus:
12. Police Clearances. Based on where applicant has lived. (1) Required from the country of nationality, if applicant lived there 6 months or more after attaining the age of 16 years. (2) Required from different countries where applicant lived for over 12 months since reaching the age of 16 years. (3) Required from countries where any arrests took place. (Note: There are some countries that do not issue police clearances.)
13. Military Records, if one was in the military.
14. Generally, for the consulates the employment verification letter must be notarized.
One needs to remain in valid Nonimmigrant status while the consular application is pending.
There are various processing stages before consular case is set for interview. This includes waiting for the Service Center to pass the file to the National Visa Center (NVC) and for the NVC to acknowledge receipt; assignment of a case number by the NVC and request for consular fees; issuance of initial forms/instructions to applicant; (once completed initial forms/documents are returned), review of forms by NVC for completeness; notice from NVC that the file has been sent to the appropriate U.S. Consulate; notice from the Embassy/Consulate scheduling applicant for interview.
The interview takes place at the scheduled appointment. Depending on the Consulate, the medical is taken prior to the interview or on the same day of interview and the Immigrant Visa package for an approved case is issued the same day or up to 7 business days thereafter.
Applicants with approved Immigrant Visa packages, present packages to the Customs and Border Protection (CBP) officers upon entry to the U.S. U.S. Permanent Residency is granted by the CBP and an I-551 stamp placed in the applicant’s passport to show that U.S. Permanent Resident status has been granted. This stamp is used temporarily to identify the applicant as a U.S. Permanent Resident for purposes of work and travel, until the Permanent Resident Card is received through the mail, anywhere from 2 weeks to 6 months after the grant of Permanent Residency.
Key factors regarding consular processing are the following:
1. Additional expenses such as transportation/accommodations/food costs for travel to an overseas consulate for each person attending the interview.
2. One has to wait until the I-140 is approved (6-12 months or longer) before the file is transferred from USCIS to the NVC.
3. Spouse and children are not given employment authorization ( “EAD”) or an advance parole for travel so non-immigrant visas must be kept current. With the elimination of visa reissuance by mail by the Department of State in Washington, D.C., reissuance must now occur at an American consulate outside the U.S.
4. Because no EAD is issued for consular processing, the legal fees may be higher because it may be necessary to renew the non-immigrant petition, such as the H-1B or L-1 petition since this document controls one’s status instead of the EAD and Advance Parole documents issued when one does AOS processing.
5. Post 9-11, consular conditions may be uncertain in specific geographic areas and there may even be consular closures, resulting in delays in securing an appointment. Generally, however, currently consular processing results in faster adjudication of one’s application.
6. An applicant may experience difficulty and delay in securing police clearances.
7. Currently, “Portability” is not permitted for consular processing. In order to be eligible for portability the AOS filing must be pending for six months or more and the I-140 must have been approved. “Portability” allows one to accept job changes, promotions, transfers to different locales without having to start from scratch, as long as one is working in the same or similar occupation. Whenever a company reorganizes, or wishes to promote someone, portability is very useful.
8. Consular processing may not be advisable for someone with children who are turning 21 years of age; anyone who has any special irregularities in their immigration history in the U.S.; and anyone traveling to high-fraud profile consulates for the final interview.
9. An interview is generally not required with AOS filings but some cases are sent to the local office for interview on a random basis and if there are issues to resolve. Such interviews trigger delays of six months or more in the AOS processing time for permanent residency.