Law360 (May 24, 2021, 5:27 PM EDT) --
There are two procedural pathways employment-based immigrants can take to achieve lawful permanent resident, or green card, status if they are already in the U.S. with a temporary visa.
- Adjustment of status by filing form I-485, Application to Register Permanent Residence or Adjust Status, via U.S. Citizenship and Immigration Services processing while remaining in the U.S.; or
- Consular processing at a U.S. Embassy abroad, culminating in issuance of an immigrant visa.
Several factors may influence this election. The employer that sponsors such immigrants, and in many cases finances sponsorship, may have a say in this critical procedural decision. In addition, there are factors that can make an individual ineligible for this to adjust their status from within the U.S. via USCIS processing — this option is a privilege and not a right. Recent developments and trends emerging under the Biden administration may be changing the calculus for such decision-making.
Let us look at the choices, the key factors and considerations, and how changed policies and emerging trends may factor into such decisions.
Biden Administration Trends that May Impact Green Card Decisions
Trends are quickly unfolding as the new administration settles in. In one of his first immigration changes, on Feb. 24, President Joe Biden revoked former President Donald Trump's Presidential Proclamation 10014 banning the issuance of immigrant visas for employment-based applicants and for family members of lawful permanent residents.
Biden stated that Trump's ban "harms the United States, including by preventing certain family members of United States citizens and lawful permanent residents from joining their families here. It also harms industries in the United States that utilize talent from around the world."
Additionally, since the advent of the Biden administration, there has been an increase in the number of employment-based adjustment-of-status cases being approved without an interview. We believe that this trend is likely to continue and that USCIS will only interview a narrow number of employment-based applicants, such as those who present eligibility issues upon review.
This is a drastic change from the Trump administration, which had an "interview everyone" approach, despite USCIS' long history of not conducting interviews for employment-based adjustment-of-status applicants.
Most importantly, on March 9, USCIS vacated the 2019 public charge rule by announcing it would no longer fight in favor of the rule, despite having defended it for several months. On March 15, USCIS published a final rule removing the 2019 public-charge regulations from the Federal Register, making the Form I-944 declaration of self-sufficiency obsolete. This was a major change as the declaration required applicants to submit extensive documentation including tax returns, credit scores, educational evaluations and even health insurance information.
The Two Pathways to Permanent Resident Status
As discussed, one of the procedural paths that can be used to obtain a green card is adjustment of status. Adjustment of status allows the applicant to apply for permanent resident status directly with USCIS without having to depart the U.S. for visa processing.
The processing time for adjustment of status may vary depending on the field office or processing center adjudicating the case, and on the immigration quota system, but processing times often fluctuate between one and two years — although in some cases it may be quicker.
Consular processing on the other hand, requires the applicant to depart the U.S. — if the applicant is in the U.S.— and attend a consular interview. The interview will take place at a U.S. embassy abroad, typically in the applicant's country of citizenship.
Prior to the pandemic, the process would generally take between six and 14 months. However, because COVID-19 resulted in embassy closures, the timeframe is now extremely hard to predict. Once scheduled, the applicant will generally receive about one month's notice prior to consulate interview.
Eligibility to Adjustment of Status From Within the United States
Generally, to be eligible for adjustment of status, the applicant must be present in the U.S., must have been inspected and admitted into the U.S. and currently in lawful status. Also, there must be an immigrant visa immediately available for the applicant. Normally, falling out of lawful status or working without an employment authorization is a bar to adjustment of status.
Fortunately, Section 245(k) of Immigration and Nationality Act provides certain employment-based adjustment-of-status applicants with an exemption, and allows applicants to apply for adjustment of status even if they have worked without authorization or otherwise have been out of status for less than 180 days.
To calculate the 180 days, USCIS will only count the applicants' violations after the date of the applicant's last entry into the U.S. Note that the applicant must have been in valid nonimmigrant status when they entered the U.S.
It is important to note that only the following employment classifications are eligible for relief under Section 245(k):
- EB-1: aliens of extraordinary ability, outstanding professors and researchers, and certain multinational managers and executives;
- EB-2: aliens who are members of the professions holding advanced degrees or aliens of exceptional ability;
- EB-3: skilled workers, professionals, and other workers; or
- EB-4: religious workers described in Section 101(a)(27)(C) of the act.
Ineligibility to Adjust Status
As discussed, not everyone is eligible to file for adjustment of status in the U.S. If an applicant was not properly inspected and admitted into the U.S., they are not ordinarily eligible to apply for adjustment of status.
However, INA Section 245(i) enables certain individuals who would not normally qualify to apply for a green card in the U.S. To qualify under 245(i), the applicant must have had an immigrant petition filed on their behalf, or must be the beneficiary of a labor certification application filed on or before April 30, 2001.
If the applicant has certain criminal or immigration violations, an analysis needs to be conducted to determine the applicant's eligibility.
Generally, if an employment-based applicant has failed to maintain status, worked without proper employment authorization, or violated the terms and conditions of their admission for 180 days or more, they are not eligible to apply for adjustment of status. In such cases, the applicant may need to depart the U.S. and reenter to apply for adjustment of status or, in some situations, this procedural path is unavailable, and they need to apply for a green card via consular processing.
Advantages and Disadvantages of U.S.-Based Adjustment of Status
There are several advantages to U.S.-based adjustment of status. One of the key advantages is that the applicant is eligible to file as soon as a green card/visa is available and will not need to travel abroad for an immigrant interview.
Most importantly, the applicant and any derivative family members may concurrently file for employment authorization as part of the adjustment application. Also, an employment authorization card and advance parole document will be issued as part of the adjustment of status process, allowing the applicant to remain and work lawfully in the U.S. and to travel, even if their status expires after the filing of the adjustment of status petition.
Filing for adjustment of status also allows the applicant job portability, meaning that they will be able to change jobs or employers after their adjustment of status petition has been pending for 180 days. Note, however, that the new job must be in the same or similar occupational classification as the position listed in the immigrant petition or the applicant's original labor certification.
Another key benefit is that an attorney can accompany the applicant to their adjustment of status interview. Also, if any eligibility issues arise, USCIS decisions may be reopened or reconsidered. In addition, applicants can remain in the U.S. lawfully while awaiting a decision on their case instead of being stuck abroad.
A disadvantage of adjustment of status is that some applicants in valid nonimmigrant status — for example, E-2 investors, TN professionals, O-1 extraordinary ability work visa holders — cannot travel after I-485 permanent residence case filing until they obtain an advance parole document allowing them to reenter the U.S., which in recent years has involved a wait of close to one year.
Advantages and Disadvantages of Consular Processing
One of the main advantages of consular processing is the ability to travel freely during the process. As discussed, some applicants are not able to travel while their adjustment of status is pending until they receive an advance parole document, which in some cases can take around a year. Therefore, filing for consular processing might be the best route to take for those whose jobs involve foreign travel.
However, employers that finance the process as an employment benefit often disapprove of consular processing because they do not want to pay for the applicant and the applicant's travel — hotel and airfare — for their medical and final interview processes. Also, the employee will likely need to take time off from work to complete the process.
Moreover, consular processing requires the applicant to travel abroad with their entire family on the government's timetable. A U.S. embassy will often provide only a month's advanced notice, and sometimes even less, for the applicant to prepare for their consular interview and obtain the required medical examinations.
This means that the applicant and their family will need to depart the U.S. as soon as possible to prepare. Additionally, after the interview, the applicants have to wait for their immigrant visas to be issued, which can take over a week. Currently, with the pandemic, the embassies can close without any notice, leaving applicants without recourse until reopening.
Most importantly, attorneys are not eligible to attend consular interviews. If any issues arise, consular decisions are not reviewable.
Another negative factor to consider with consular processing is that neither applicants nor their derivative family members are eligible to file for employment authorization during processing. If the applicant is in the U.S., it is therefore extremely important that they continue to extend their underlying status while consular processing is pending.
Generally speaking, adjustment of status is the preferred approach for most employment-based permanent resident applicants due to the protections the process affords, like permanent-residence job portability, the availability of work authorization for family members, the ability to fend off any government challenges while inside the U.S. rather than being possibly stuck abroad and, often, the ability to push the case forward to filing more rapidly.
The lifting of the travel ban against immigrant visa applicants, the removal of the public charge rule and the resumption of a more normal — historical — processing by the National Visa Center and U.S. embassies may facilitate advancement of a greater number of immigrant visa cases. Some permanent resident applicants, such as E-2 and O-1 visa holders who cannot wait six months or more for advance parole travel authorization, may continue to elect consular processing. However, in our view, adjustment of status will remain the option of choice for the great majority of employment-based permanent resident applicants.
Correction: A previous version of this article misidentified conditions that render an applicant ineligible for adjustment of status. The error has been corrected.
Cynthia Perez is a managing attorney and Douglas Halpert is a partner at Hammond Neal Moore LLC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 A Proclamation on Revoking Proclamation 10014, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/24/a-proclamation-on-revoking-proclamation-10014/.
 INA Section 245(a). Additionally, there are some exceptions to this rule and some applicants may be eligible for adjustment under INA Section 245(i). See Chapter 3, Unlawful Immigration Status at Time of Filing (INA 245(c)(2)) [7 USCIS-PM B.3] through Chapter 8, Inapplicability of Bars to Adjustment [7 USCIS-PM B.8].
 USCIS Memorandum-, Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act (July 14, 2008), available at https://www.uscis.gov/sites/default/files/document/memos/245%28k%29_14jul08.pdf.
 INA Section 245(i).
 8 CFR 245.25(b).
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