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Advantages & Disadvantages of Green Card Application through Consular Processing

Green Card Application through Consular Processing - The Advantages

The main advantage of green card application through consular processing over adjustment of status from inside of the United States is a shorter processing time.

  • If the USCIS properly and timely forwards the approved I-l40 employment-based preference petition to the National Visa Center of the U.S. Department of State, it is conceivable that an immigrant visa appointment at an American Consulate could be scheduled within no more than one year, depending upon the particular Consulate's workload.
  • If the applicant for an immigrant visa is in possession of a valid nonimmigrant visa, the individual may travel freely while waiting for the visa appointment to be scheduled for his or her green card application.

NOTE: TN non-immigrants must be more cautious with international travel, since they must establish at the time of each TN re-entry into the United States that they are working temporarily in this country and that they have a residence abroad which they have no intention of abandoning. This can be difficult if they have started the green card application process.

However, as USCIS processing times get shorter, this particular advantage of the green card application through consular process becomes less and less important.

Green Card Application through Consular Processing – The Disadvantages

  1. Inconvenience/cost.
  2. The primary disadvantages are the inconvenience and expense of traveling to the American Consulate to appear for the required green card application interview. Unlike the USCIS, the Department of State does not waive the interview requirement for consular processing and it applies to all family members seeking immigrant visas irrespective of age.

    The green card application interview may well be scheduled at a time that does not fit well with employment considerations and personal schedules in the United States; rather, the interview is scheduled at a time that is convenient to the Consulate, not the applicant. Appointment dates are generally difficult to change and will result in additional delays in the application process.

    Also, and MOST IMPORTANTLY, while attorneys of record may routinely appear at adjustment of status interviews for which their clients are scheduled by the USCIS (inside the United States), the same does not hold true for the Department of State. Attorneys are not allowed to appear with their clients during the client’s green card application interview at the consulate.

  3. Documentary Requirements for Green Card Application through Consular Processing
  4. Documentary requirements are different and generally more complicated for green card applications through US consulates abroad. Most applicants must obtain police clearances from all countries in which they have resided for more than six months since reaching the age of 16 if the U.S. Department of State considers such records to be available. Those who have served in a foreign military organization must obtain a record of their military service.

    The medical examination will be scheduled with an approved physician or medical clinic selected by the Consulate and may require the applicant and accompanying family members to appear in the foreign country up to one week in advance of the interview date; medical examinations conducted by USCIS-approved physicians or clinics are not acceptable.

  5. No Work Authorization for Dependent Family Members
  6. The Employment Authorization Document application available to Adjustment of Status applicants is not available to applicants for immigrant visas through consular processing.

    Therefore accompanying family members in H-4, O-3 and TD status who have not been able to work in the United States will continue to be unable to work until their immigrant visas have been issued and they have been readmitted to the United States as permanent residents.

    Since the Employment Authorization Card can normally be obtained within three months, and the immigrant visa interview may well take a year to be scheduled, this can result in a considerable delay in obtaining employment authorization.

  7. No AC21 "portability"
  8. AC21 section 106 allows for portability for Adjustment of Status applicants if there are changes in the job offer so long as the new job is for a “same or similar occupation” and so long as the Adjustment of Status is pending for at least 180 days. This relief only applies to adjustment of status applicants.

    Therefore, someone who opts for a green card application through consular processing rather than Adjustment of Status is forgoing the possibility of porting their application for permanent residence to another employer or to another job if such an event occurs.

    It is VERY IMPORTANT to understand that if someone chooses to submit a green card application through consular processing, major changes which may occur in the nature of the job duties or geographical location of employment before the consular processing interview, or prior to admission as an immigrant following the consular processing interview, can serve to render the approved labor certification and/or I-140 petition invalid.

    If the employer goes out of business, or is acquired by another company which has no intention of continuing the permanent resident process, there will be no basis for approval of the consular processing application for a permanent resident visa.

    For green card applications being filed as consular processing cases, the offer of employment which provided the initial basis of the filing of the consular processing application must continue in effect until the applicant has been granted lawful permanent resident status.

    As you can see from the discussion above, the decision of deciding whether to submit a green card application through consular processing vs. adjustment of status is extremely important and may have an incredible impact on your immigration status and case. My best recommendation to you is to not make the decision on your own and to contact an immigration lawyer in the USA to guide you through this process.

    Best of luck to you!



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