Upon approval of a Labor Certification or filing of an I-140 Immigrant Visa Petition if taking advantage of “Concurrent Filing”, an individual may complete the immigration process in one of two ways:

1. By applying for Adjustment of Status inside the U.S., through the CIS Service Center having jurisdiction over the applicant’s place of residence in the U.S. This procedure is only available to applicants who are in the U.S. and who meet certain additional requirements.
    

2. By applying for an Immigrant Visa at the U.S. Consulate in the country of last residence; this procedure is available to applicants who are in the U.S. as well as those who are abroad. If the applicant chooses this method he/she is required to wait until the I-140 is approved before the Immigrant processing begins.

Please be advised that in light of the events of September 11th, and the continued uncertainty of security at consulates worldwide, we strongly recommend that eligible applicants seriously consider applying for Adjustment Of Status in the U.S.
 

An applicant who is currently residing temporarily in the U.S. may apply for adjustment of status through one of the four CIS Service Centers if it is an employment-based case.

All applicants must meet the following requirements:

• He/She must have a valid entry to the U.S. as a nonimmigrant, or as a parolee. This excludes those who entered the U.S. without inspection by crossing the border illegally, entered as transits without visas, or simply lack proof of entry.
   

• In addition he/she must not have worked in the U.S. without authorization, overstayed his/her authorized period of stay, or have other violations of status.

The are two important exceptions to the general rules which require applicants to be in lawful status:

• Employment based applicants who have been out of status or who have worked without authorization for a total of less than six months are still eligible (Section 245(k) of the Immigration and Nationality Act)
   

• Employment based applicants who have been out of status or worked without authorization for more than six months, who entered without inspection, or who simply lack proof of entry, AND whose Labor Certification or Immigrant Visa Petition (for cases which do not require a Labor Certification) were filed before April 30, 2001 AND who are willing to pay a $1,000 “penalty fee” with the application (Section 245(i) of the Immigration and Nationality Act).

The Adjustment of Status application may be filed with the I-140 Immigrant Visa Petition or with the receipt notice of the I-140 Immigrant Visa Petition (Form I-797 Notice of Action). The principal adjustment of status application contains Form I-485, together with Form G-325, I-181 and a few miscellaneous CIS forms.

Supporting documentation is generally the same as that required for an Immigrant Visa, with two important exceptions:

• Foreign police certificates are NOT required
   

• Military records are NOT required.

Furthermore, employment-based adjustment cases are now generally granted without an interview.

Current processing time for applications filed at the Vermont Service Center of CIS range from about 10-18 months. When considering processing times, it is essential to keep in mind the following:

• Processing times vary, without advance notice. Some cases in Vermont were taking two years or longer. Recently, we have experienced a reduction in processing times. This situation could be reversed in the future.
   

• Processing times vary at different CIS Service Centers.

If a preliminary review of the application reveals apparent problems, an interview will be required. Some cases are randomly chosen for interview even if there are no obvious problems. Should an interview be necessary, the case will be transferred from the CIS Service Center to the CIS District Office. Those applicants who require an interview will be scheduled to appear in person.

If an interview is not required, the applicant simply receives an approval notice in the mail indicating that he has been granted Lawful Permanent Resident status. He will then be instructed to report in person to a local CIS District Office for the taking of the Form I-89 fingerprint. The applicant may also, upon request, be issued the Temporary Form I-551 ("green card") stamp that can only be placed in a valid passport.

Once the application is filed, the applicant's travel abroad is somewhat restricted. Initially, the applicant is prohibited from departing from the U.S. at least until arrival of the receipt for the I-485 from the Service Center. This has been taking about four to eight weeks. To do so would constitute an abandonment of the application.

Additionally, applicants who possess valid H-1B or L-1 visas, and who are still maintaining status after the filing of an Adjustment of Status application, may reenter the U.S. upon presentation of the valid visa together with the CIS receipt for I-485, without having to obtain an Advance Parole document.

A significant benefit of applying for Adjustment of Status is that the applicant and accompanying family members may apply for and be granted Employment Authorization as soon as the Adjustment of Status application is filed. This will permit a spouse to be employed during the long wait for the final approval of the application. It is also particularly important for applicants whose nonimmigrant status is about to expire, and who is some cases cannot obtain additional extensions of stay (e.g. L-1 or H-1B applicants who are approaching the five or six year limitation on stay.

Adjustment of Status-Advantages
 

• Can file I-485 application concurrently with I-140 Immigrant Visa Petition or with the receipt notice of the I-140 Immigrant Visa Petition (Form I-797 Notice of Action).
   

• No need to travel abroad with entire family to attend visa interview at Consulate, possibly with limited notice.
   

• Police certificates and military records not required.
   

• Usually does not require any interview.
   

• If pending for more than six months, application becomes “portable” and applicant can move on to a different employer, providing he is still employed in the “same or similar occupation.”
   

• Ability to obtain “employment authorization” and “Advance Parole” for applicant and any family members upon filing of I-485. 

Adjustment of Status-Disadvantages
 

• Many cases will take longer before the applicant is granted Lawful Permanent Resident status than if the applicant applied for an Immigrant Visa

Travel abroad will be restricted for a short period of time upon filing of the Application (for residents of Massachusetts) and for a period of up to several months for residents in other parts of the country)
 

Application for an Immigrant Visa
 

If the applicant chooses to apply for an immigrant visa at the U.S. Consulate in the country of last residence, the Visa Petition will designate the location of the visa issuing post. Upon approval of the Petition, CIS will forward the paperwork to the National Visa Center ("NVC") in Portsmouth, New Hampshire.

When the Petition is received at the NVC, the following steps are taken:

• Case data is entered into their computer system.
   

• In those cases in which there is no backlog or waiting list, the Petition is forwarded to the Consulate for further processing.
   

• The applicant is sent the Immigrant Visa Application accompanied by detailed instructions that must be followed to complete the immigration process. This is known as “Packet 3.”

Upon receipt of Packet 3, the applicant must do the following:

• Complete, sign, and return a Biographic Information Sheet immediately to the Consulate.
   
• Gather all the documents required for the personal interview.
   
• Furnish the Consulate with a separate, signed notice (OF 169) indicating that all documents have been assembled and that the applicant is ready for the interview. This is often sent together with the Biographic Information Sheet.

• A valid passport;
   
• Birth certificates of each applicant;
   
• Marriage, divorce, and adoption papers;
   
• Police certificates indicating that the applicant has no criminal record, from any country where he/she has resided for more than six months after the age of sixteen. No police certificate is required from the U.S.
   
• Military records, if the applicant has been in the military;
   
• Court records reflecting the disposition of any criminal charges in any country;
   
• A medical examination report, which may be completed only by a physician designated by the Consulate (Consulates normally send a list of physicians with the interview notice);
   
• An updated job confirmation letter (Employment-Based cases);
   
• Photographs which meet detailed specifications;
   
• Filing fees for the visa application. 

The precise documents that an individual must furnish will vary from case to case depending upon a variety of factors. For example, police certificates are not available and therefore not required for residence in many countries.

Upon receipt of the applicant's signed statement stating that all required documents are in his/her possession (the "Notice of Readiness" or OF-169), the Consulate will schedule the interview. Usually, several months will elapse before the interview is scheduled. The applicant usually receives about four weeks advance notice.

At the time of the interview, if there are no unexpected difficulties, each applicant will be issued an Immigrant Visa. The applicant will be allowed up to six months to use the Visa to enter the U.S. Upon entry, the Visa will be surrendered at the port of entry and the applicant will be admitted to the U.S. as a Lawful Permanent Resident (LPR). A "Temporary Form I-551" (green card) stamp will be placed in the passport. The stamp is normally valid for six months to one year, during which time CIS will manufacture and mail an actual "green card" to the applicant. The Temporary Form I-551 may be used to travel abroad and reenter the U.S. until the "green card" is received.
 

Immigrant Visa Processing-Advantages
 

• May take less time than filing for Adjustment of Status.

• Cannot file an Immigrant Visa Application concurrently with I-140 application or with receipt of I-140 application.
   
• Always requires a personal interview with entire family at the Consulate.
   
• Fairly short notice (four to six weeks) to arrange travel.
   
• Interview can be postponed but will likely delay case for several months.
   
• Police certificates and military records required.
   
• No concept of “portability” as in Adjustment cases; applicants must continue to have same job available with same employer at time of interview and return to the U.S.
   
• No ability to obtain “employment authorization” or “Advance Parole” for applicant and any family members while awaiting interview.
   
• While the vast majority of visas are issued on the day of the interview, any problems that do arise must be resolved while the applicant waits overseas.
   
• While the vast majority of visas are issued on the day of the interview, any problems that do arise must be resolved while the applicant waits overseas.
   
• Opportunity for legal representation to address problems at the Consulate is limited.

Which Way to Proceed?