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Adjustment of Status 'versus' Consular Processing?

Which is Better? Adjustment of Status or Consular Processing?

Persons residing in the United States with approved visa petitions whose priority dates are current usually have the option of (1) adjusting their status in the U.S. or (2) obtaining an immigrant visa abroad through consular processing.

If you are one of these persons, what is the best option for you? There is no "one size fits all" answer. The answer for you depends on you, the facts of your case and your tolerance for risk.

Below are some of the advantages/disadvantages of both adjustment of status and consular processing:

Adjustment of Status
* Interview - In employment-based cases, INS does not usually conduct an interview. In family-based cases, they do. If there is an interview, you have a right to have your attorney accompany you.

* No Need to Travel Abroad - There is no need for you to travel abroad. This is especially important if your interview goes sour. If the INS requests additional information or decides to conduct an investigation into your case, you can return to your job and family while the case is in progress.

* Due Process Rights - Let's suppose that the worst case scenario occurs: INS investigates your already-approved visa petition and decides it might have been granted in error. In this case, the INS must first serve your petitioner with a Notice of Intent to Revoke (NOIR) your petition. The petitioner may attempt to rebut the information contained in the NOIR. Even if the INS ultimately decides to revoke the petition, its decision may be appealed to the INS's Administrative Appeals Office (AAO) in Washington, D.C. If the AAO affirms the decision to revoke the petition, this decision may be challenged in Federal Court. Only when the revocation becomes final may the INS rule on your application for adjustment of status. In the meantime, you are entitled to renew your Employment Authorization Document (EAD) and your Advance Parole travel document on an annual basis.

* Waivers of Inadmissibility - What if you are not admissible for permanent residence because you have been convicted of a crime or have committed immigration fraud? You may be entitled to seek a waiver on the ground of inadmissibility. If INS denies your waiver request, you may appeal the denial to the AAO.

* Right to Renew Adjustment Application in Immigration Court - What if your adjustment application is denied? In most cases, you can renew your application before an Immigration Judge in a removal proceeding. However, if your visa petition has been revoked, the Judge has no jurisdiction to overrule the INS's decision to revoke the petition. Even if you are not able to renew your adjustment application before the Judge, you may be eligible for alternate forms of relief from removal including cancellation of removal, asylum, etc.

* 180-Day Portability Rule - If, in the case of an employment-based petition, the INS fails to decide your application for adjustment of status within 180 days, you have the right to change to another job as long as the new job is in the same or a similar occupation.

Consular Processing
* Speed - While it may take you from a few months to over two years to adjust your status, you may be able to obtain an appointment for consular processing in a much faster time frame.

* Interview - You will always be required to submit to an interview if you choose consular processing. You will need to submit additional documents not required for adjustment of status such as police clearances from every location in which you resided since your 16th birthday.

* Lack of Due Process - If the consular officer denies your application for an immigration visa, there is no formal appeal process. You, or your attorney who is usually in the U.S., can plead your case with the Chief of the Immigration Visa Section of the U.S.Embassy/Consulate where your interview was conducted. You can also request an "advisory opinion" from the State Department in, Washington, D.C. if you believe that the consular officer has misapplied the law. However, you may not challenge the officer's decision in the Federal Courts. In fact, you can not return to the U.S. unless you are in possession of an advance parole or a valid nonimmigrant visa which permits "dual intent" like an "H-1B" or an "L". Normally, if the consulate needs more information, requires a waiver or returns your visa petition to the INS for revocation, you are forced to remain abroad until, and unless, your immigrant visa application is granted.

To sum it up.......... while consular processing may save you time, it is only advisable if your case is "squeaky clean". Given the various problems which may occur, even in clean cases, consular processing is not for the faint of heart.

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