BERNARD P

Adjustment of status is the process by which an alien applies to have his status “changed” from nonimmigrant to immigrant in the United States. The adjustment of status application (Form I-485) is filed with the BCIS. If the adjustment of status application is approved, the alien becomes a lawful permanent resident of the United States.

Immigrant visa processing is the process by which an alien applies for his immigrant visa at a U.S. consulate abroad. The immigrant visa application process involves two arms of the Department of State – the National Visa Center and the U.S. consulate abroad. If the immigrant visa application is approved, the alien must enter the United States within 6 months of the visa approval in order to become a lawful permanent resident of the United States.

It can be beneficial to adjust status in the United States, as the primary advantage of speed found in immigrant visa processing is partially lost due to a new law that allows one to change employers after the adjustment has been pending for 180 days. However, it is usually better to choose immigrant visa processing in diversity lottery cases, as visa numbers are assigned at the time of scheduling of the interview.

On July 31, 2002, the BCIS (formerly the INS) published an interim rule allowing the Form I-485, Application to Register Permanent Residence or Adjust Status, to be concurrently filed with Form I-140, Immigrant Petition for Alien Worker, when a visa is immediately available. Previously, an alien worker who wanted to apply for permanent residence could not do so until he obtained approval of the underlying I-140 petition, and therefore, there was a delay from the time the I-140 was filed until the alien worker could properly file his I-485. Concurrent filing eliminates the delay that takes place between approval of the I-140 and the subsequent filing of the I-485. Concurrent filing also allows the alien worker to apply for employment authorization and for advance parole travel authorization while the I-485 is pending.

In addition to the above-mentioned benefits, there is a new provision that allows an alien to change employers without forfeiting the “green card” as long as certain criteria are met. Section 106(c) of the American Competitiveness in the Twenty-First Century Act (AC21) provides that (a) if an alien is the beneficiary of an approved Form I-140 and is also the beneficiary of a Form I-485 that has been pending 180 days or longer; and (b) the new job is in the same or similar occupational classification as the job for which the certification or approval was initially made, then the approved Form I-140 remains valid with respect to a new offer of employment, and the alien may adjust status to permanent residence.

Adjustment of Status	Issues	Immigrant Visa Processing
The principal applicant (and his immediate family members) will not be required to travel to the interview because the interview is generally waived. However, if the case is transferred from the BCIS Service Center to the local BCIS District Office for an interview, the principal applicant (and his immediate family members) will be required to travel to the local BCIS District Office for the interview.	Will I (and my family) have to travel to the interview?	The principal applicant (and his immediate family members) will be required to travel to the U.S. consulate abroad for the immigrant visa interview.
The interview in employment-based cases is usually waived.	Will I (and my family) have to be interviewed?	An interview before a U.S. consul is always required.
If the principal applicant in an employment-based case loses his/her job unexpectedly, he/she can transfer employers after the adjustment case has been pending 180 days at the BCIS Service Center, as long as the new job is in the same or similar occupational category for which the labor certification or I-140 Petition for Alien Worker was approved. However, under the concurrent I-140 and I-485 filing procedure, if there is no approved labor certification or I-140, and the principal applicant in an employment-based case loses his/her job unexpectedly, he/she cannot transfer employers.	What if I lose my job for which the labor certification and/or I-140 Petition for Alien Worker was approved?	The immigrant visa application is automatically revoked if the principal applicant loses the job for which the labor certification and/or I-140 Petition for Alien Worker was approved.
If an interview is required, an attorney may make a personal appearance with the principal applicant (and the immediate family members) at the local BCIS District Office.	Can I (and my family) have an attorney appear with me (and my family) at the interview?	Many consulates do not allow attorneys to appear at the consulates with the applicants. Furthermore, the distance to the consulate makes attorney appearances impractical.
A police certificate is not required. However, the BCIS will require the applicant to be fingerprinted at one of its Application Support Centers (ASC) for an FBI criminal background clearance.	Will I (and my family) have to obtain a police certificate?	A police certificate is required from every country where the applicant has resided for more than 6 months since reaching 16 years of age.
There are some procedures for review of the denial of the adjustment application, such as motions to reopen and reconsider and hearings before an immigration judge.	What happens if the case is denied?	There are virtually no opportunities to appeal the decision of the U.S. consul to deny the immigrant visa application.
It depends on the BCIS Service Center where the case was filed. Moreover, the processing time at each Service Center is unpredictable, sometimes as short as 8 to 10 months and sometimes as long as 2 years or more.	What is the processing time from the time the application is filed until the case is adjudicated?	It is usually faster to apply for the immigrant visa at the U.S. consulate abroad than to apply for adjustment of status in the U.S. Immigrant visa processing can take anywhere from 4 to 20 months less than an adjustment application.
While the adjustment case is pending, the adjustment applicant (principal and/or family member) can apply for employment authorization by filing the correct form and paying the BCIS filing fee. The BCIS can take at least 4 months to process an employment authorization document. Employment authorization will be issued for one year and it can be renewed yearly until the adjustment application is approved.	Can I (and my family) obtain employment authorization while the case is pending?	There is no employment authorization available to an immigrant visa applicant.
If the applicant has a valid H or L visa “stamp” in the passport and maintains H or L status, the applicant does not require special permission from the BCIS to travel abroad. All other applicants must apply for and obtain an advance parole travel document in order to travel abroad. The BCIS can take at least 4 months to process an advance parole travel document. Traveling without the H/L visa or the advance parole travel document will result in the automatic withdrawal of the adjustment application.	Can I (and my family) travel abroad while the case is pending?	The applicant and family may travel as long as they have a valid nonimmigrant visa “stamp” in their passport.
Sometimes it is necessary to complete the principal applicant’s adjustment case at the BCIS Service Center before the family who is abroad can apply for their immigrant visas at the U.S. consulate abroad. If there is family abroad and there are no unlawful presence issues, it is faster for the principal applicant to apply abroad with the rest of the family.	How can my family who are abroad apply for their immigrant visas?	Family members who are abroad will apply at the same time with the principal applicant for their immigrant visas at the U.S. consulate abroad.

Issues