As the Immigration & Naturalization Service takes longer and longer to adjudicate adjustment of status applications, sometimes taking as long as two to three years, more and more of our clients are weighing the advantages and disadvantages of adjustment of status processing compared to overseas immigrant visa processing. This article outlines the advantages and disadvantages of each so that an informed decision can be reached.
Adjustment of Status in the United States
- No interview: Virtually all interviews for employment-based cases are waived. Therefore, there is no tension or stress of an interview that must be endured.
- Earlier work authorization (EAD) document for the applicant or spouse and children: If one of the reasons for applying for permanent residence is to get work authorization for a spouse or child to be able to work, it is faster to obtain such authorization by going through the adjustment of status process.
- When adjustment of status is filed, a person can remain in the United States for as long as it takes to adjudicate the application-for persons who are running out of time. For example, they are reaching the sixth year of their H-1 stay in the United States, as long as their adjustment of status application is filed with the Immigration Service, they can remain in the United States for the two to three years that it takes to adjudicate. This is done by obtaining work authorization as well as travel permission, if needed.
- Difficult cases: There are some factors which make a case "difficult." Factors such as time spent in the United States while the person is out of status, changes in job duties, changes in the employer (such as an acquisition or merger), criminal background, or fraud (real or imagined) all can create problematic issues overseas. At worst, a person may not be able to come back to the United States until these issues are resolved. At best, it will mean that the person will have to come back to the United States, have the issues resolved, and then return for another interview. This costs much in time, effort, and money. On the other hand, a person who has applied for adjustment of status can continue to remain, work, and live in the United States until the issue is resolved.
- Time: It is currently taking two to three years to adjudicate an application for adjustment of status. During this period of time, a person who is applying for permanent residence based on employment cannot change his or her employment within the company or seek employment with another company. This can cause considerable problems in our dynamic economy and prevent a person from moving on to better paying or more challenging jobs.
- Persons who frequently need to travel and cannot wait up to three months in order to obtain travel authorization, may be disadvantaged by applying for adjustment of status.
Immigrant Visa (Overseas) Processing
Currently, overseas processing normally takes six to eight months. The applicant is only required to return home for about a week at the end of processing. In some cases, overseas processing is taking less than six months. However, there is also the possibility that overseas processing may begin to take longer as more people choose to process overseas. However, since there is no current processing backlog, it will take some time for the backlog to equal what is happening at the Immigration Service.
- Cost of Flight: Airline trips can be expensive. It will be necessary for not only the primary applicant to fly home, but all family members as well. If the first interview is not successful, it will be necessary for the family members to repeat that flight at a later time for a second interview.
- Interview: Persons who process overseas are required to attend an interview. Any interview with Government officials is always a time of stress and strain.
- Additional attorney's fees: Depending at which stage it is decided to process overseas, there is an additional minimum fee of $750 in attorney's fees and up to $2,000 or more depending on the size of the family. If the employer is paying the fees and costs associated with permanent residence, it is necessary to ensure that they will pay this additional charge.
- Poor timing: While there is some flexibility in the time that the overseas interview is held, it is not without its problems. For that reason, an appointment may be scheduled at an inopportune time, either personally or employment-wise. Persons who have to fly long distances usually want to spend additional time overseas visiting with friends and relatives. However, the interview may come at a time when they are extremely busy and cannot afford to spend the time overseas.
- Additional documents necessary: In most cases, additional documents are required that are not required in adjustment of status applications. These documents include police certificates from every country where the person has lived for more than one year, military certificates, and in a few specific countries, other additional documentation. It is sometimes difficult or cumbersome to obtain these documents especially while living in the United States.
- Arbitrary Investigations: Just because a person has obtained a labor certification, visa petition, or other approval indicating the ability to immigrate to the United States, the consular officer can decide to conduct investigations regarding to the underlying factors of those applications such as investigating the authenticity of school records, investigating a person's experience, or their actual job in the United States, etc. Because there is no judicial oversight, consular officers tend to be more arbitrary in requiring these actions.
- Immigrant visa denial: While it does not happen very often, it is possible at the first interview that an immigrant visa will not be issued. In most cases, the applicants can return to the United States on H-1, L-1, or other visas. However, a denial will require a return trip later for a second interview. This is expensive in time, effort, and money.
Some people are considering filing both adjustment of status applications and immigrant visa applications. While this is certainly possible, it is not normally recommended, due to the fact that the government agencies involved, the Immigration & Naturalization Service and the State Department, do not favor both applications being processed at the same time. Therefore, they may be more picky and arbitrary in the process. Also, due to the increased cost in legal fees as well as other expenses, a person should consider carefully whether they want to pursue both at the same time.
Should you have any questions about these matters which are not covered in this publication, please call our office at 650-490-4545, Local 408-214-0859.
Disclaimer: Nothing on this or associated pages should be taken as legal advice for any individual case or situation. the information is intended to be general and should not be relied upon for any specific situation.
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Edward R. Litwin is a specialist in Immigration and Nationality Law, certified by the Board of Legal Specialization of the State Bar of California. He and his firm have helped thousands of people immigrate to the United States. He is available for consultation by appointment.