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United States Immigration Policies and the Advantages and Disadvantages of Seeking a US Green Card through Adjustment of Status

United States Immigration Policies Surrounding the Adjustment of Status Process (US Green Card)

The United States immigration policies surrounding the adjustment of status process are extremely technical and complex. The individual seeking the US green card must be aware of these policies and procedures before choosing a method through which to obtain the US green card.

The decision of obtaining your green card through consular processing or adjustment of status can be a complicated experience. Any mistake you make may lead to a waste of money, time, and even still, a bar from US immigration benefits. There are many important choices to make in this confusing process of ultimately obtaining your green card and you must always be aware of the most recent changes in United States immigration policies and procedures.

This site was created to give you the information you need about United States immigration policies to make the right decisions. However, the information in this site can in no way replace good legal advice from an immigration lawyer in the USA. As you may already know, United States immigration policies are constantly changing so it is extremely important to consult with an immigration lawyer who specializes in this field of law.

If you haven’t already done so, stop right now and read our homepage. It is full of surprising information about United States immigration policies that could save you a great deal of time and money. Once you have read through the homepage, come back here to find out more about adjustment of status, the United States immigration policies surrounding the process, and whether it is an option for you.

Advantages and Disadvantages of Seeking a US Green Card through the Adjustment of Process

United States immigration policies and procedures are constantly changing and developing. Accordingly, deciding whether to seek your green card through consular processing or adjustment of status can be a difficult choice. The information below regarding United States immigration policies surrounding the adjustment of status procedure is meant to help give you a better idea of what is required and involved in each of the two available processes for ultimately obtaining a US green card (lawful permanent residence status).

Listed below are the main advantages of United States immigration policies surrounding the adjustment of status procedure to obtaining a US green card

  1. Convenience.
    Convenience is the main advantage of an adjustment of status. Since the application is filed by mail to the USCIS Service Center having jurisdiction over the alien's place of residence, United States immigration policies do not require that the applicant travel long distances and to incur the inconvenience and expense of an interview abroad at an American Consulate.
  2. Waiver of interview.
  3. NOTE:United States immigration policies require a small percentage of all employment-based applications for adjustment of status are returned to the local USCIS district offices for interviews to ensure proper quality control. Otherwise the interview requirement is usually waived, and the Service will simply adjudicate the application based upon the forms and supporting documentation which have been furnished.

    HOWEVER, as required by United States immigration policies, all family-based and diversity visa (lottery) applications are interviewed.

  4. Employment Authorization for principal, as well as dependent family members
  5. According to United States immigration policies, adjustment of status applicants can apply for an Employment Authorization Document (EAD) concurrently with, or after filing of the adjustment of status application. EAD applications involve processing times of approximately 90 days and are valid for a period of one year.

    H/L/O visa holders have the option of filing for extension of nonimmigrant work authorization instead of, or in addition to, filing for an EAD. The advantages to doing so include longer work authorization validity periods, and maintenance of nonimmigrant status in the unlikely event the adjustment of status is denied

    Not only principal AOS applicants but their dependents may apply for EADs.

    Therefore, H-4, O-3, and TD dependent family members, who were prohibited from engaging in employment in the United States, may apply for employment authorization as AOS applicants. (EADs provide an essentially unrestricted right to engage in employment or to be self-employed and can be extended in increments of one year until the AOS application is adjudicated.)

  6. Permission to travel (advance parole authorization)
  7. Also, United States immigration policies allow all applicants for adjustment of status to apply to the bureau citizenship and immigration services (USCIS) for permission to depart the United States temporarily after the adjustment of status application has been accepted for processing.

    NOTE: It has been taking 90+ days to complete the processing of advance parole applications. The Adjustment of Status applicant cannot depart the United States while the advance parole is pending without being deemed to have abandoned the adjustment application. However, the local USCIS district offices do retain jurisdiction to adjudicate advance parole applications for truly emergency and unforeseen reasons (i.e., sudden serious illness or death of an immediate family member).

    United States immigration policies and USCIS regulations which became effective on July l, l999 permit Adjustment of Status applicants who hold valid, multiple entry H/L visas to travel on those visas without the need to apply for advance parole authorization, provided that they do not violate their status as H-1B or L-1 non-immigrants (this means that they must not have actually used an EAD card to accept employment other than with their H-l/L-1 employer, or stopped working for that employer), and provided they present upon entry to the U.S. the original Adjustment of Status I-485 Receipt Notice.

    A similar rule of the United States immigration policies applies to dependent AOS applicants: they cannot have actually used an EAD card to accept employment in order to continue to use their H-4/L-2 visas, together with their original I-485 Receipt Notice, to travel.

    Note that other nonimmigrant visa holders, e.g. TNs and O-1s are excluded from this exception and are considered to abandon their adjustment applications if they use their nonimmigrant visas to travel.

  8. Portability
  9. On October 17, 2000, the President signed into law the American Competitiveness in the 21st Century Act (AC-21). This change in immigration law creates another advantage to filing for adjustment of status rather than consular processing.

    Under AC-21, Section 106(c), if the AOS application has been pending for 180 days or more, the Adjustment of Status applicant is permitted to change jobs with the same employer, or to switch to another entirely different employer as well as geographic location, provided that s/he continues to be employed in the “same or similar occupation.”

  10. Police certificates not required by United States Immigration Policies
  11. If you choose consular processing, United Statesimmigration policies require you have to obtain police certificates, in countries where the Department of State (DOS)e considers them available, from every locality of the country of your nationality or latest residence abroad where you lived since attaining the age of 16. If you opt for consular processing, you will also need to obtain police certificates from all other countries where you have lived for at least one year.

    Adjustment of Status applicants instead provide their fingerprints for FBI and related agency processing, as well as arrest or conviction records if any.

  12. Attorney can be present if interview is scheduled
  13. In the event of an interview at a local USCIS office, an immigration lawyer in USA can be present at the interview.

  14. Appeal of a negative decision (Denial) is available
  15. If something goes wrong. If there is a problem with an adjustment application, e.g. it is denied, we can appeal the decision or seek some other administrative relief.
  16. Renewal of Employment Authorization Card and Travel Documents
  17. If there is a processing delay while additional information/documentation is sought while an adjustment of status application is pending, the applicant can continue to renew his or her employment authorization card and advance parole documents until the issues are resolved.

  18. Job flexibility for concurrent filings
  19. In concurrent filing cases, if an employee is laid off or employment is otherwise terminated, or if the employee expects to be transferred to another, but similar, position (e.g., a promotion or change in job location) with the same employer, concurrent filing might protect his/her ability to continue to immigrate with the same I-140 petition and I-485 application on file with USCIS.

    In order for this to be possible, USCIS would have to agree that the portability provisions of AC21 apply, even in the case of termination of employment, and that the new position is in the "same or similar occupation" to the position identified in the I-140.

    In this situation, the employee would need employment authorization to work for the new employer (either an EAD or a new H-1B petition by that employer).

  20. Possible faster processing for concurrent filings
  21. In concurrent filing cases, there may be shorter overall processing times. If the employee’s long term goal is to assist family members to immigrate to the U.S., adjustment of status is the quickest method.

Adjustment of Status - The Disadvantages

  1. Long processing times.

    In 1998 - 2000, the USCIS allowed a huge backlog of AOS applications to accumulate, resulting in lengthy processing times. However, within the past few years, the USCIS Service Centers have begun to attack the backlogs. Also note that that processing times vary among the various USCIS offices.
  2. Unpredictable processing times
  3. The primary disadvantage of an adjustment of status in the past has been lengthy and unpredictable processing times. Longer processing times have the potential to prejudice the applications of dependent children.

    The Child Status Protection Act of 2002 indicates that dependents may be considered under 21 for the purpose of eligibility to apply for permanent residence. As a result, dependent children who were under the age of 21 when the application was initially submitted, but who become 21 years of age while the application is still pending, may or may not lose their eligibility for permanent resident status depending on the particular circumstance.

  4. Possible inapplicability of AC21 "portability"
  5. It is unclear whether the AC21 "portability" rules will apply to concurrent filings. Hence, it is unclear what action the USCIS would take if the I-140 was denied after the I-485 application was pending for more than 180 days.

    Worse case scenario, if USCIS decides that in such cases no portability is allowed, the adjustment of status applicant would be required to ask the employer to begin the immigration process all over again, including a new non-immigrant visa petition (if eligible), a new labor certification (if required), a new I-140, etc.

    Given the limits on the amount of time one can remain in H or L status, the employee might have to leave the U.S. and complete the process from abroad. You would also be taking the risk that a new employer not be interested in supporting the immigration process at all.

    As you can understand from the information written above, the process of adjustment of status is incredibly important in matters of immigration. The risks of making a wrong move in the adjustment of status process and ruining your chances of obtaining a green card are great.

    To prevent taking these risks, I strongly recommend you retain a citizenship lawyer or any immigration lawyers in USA to advise you and process your case for you. In the end, saving a few hundred dollars might cost you time (years of waiting for results and having to start application over), more money, a potential job in the United States, and even prevent you from being eligible for the green card!

    Be informed! Knowledge is power.




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