Convenience. Since the application is filed by mail to the USCIS Service Center having jurisdiction over the alien's place of residence, there is no need to travel long distances and to incur the inconvenience and expense of an interview abroad at an American Consulate.
Waiver of interview. 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. All family-based and diversity visa (lottery) applications are interviewed.
Employment Authorization for principal, as well as dependent family members. Adjustment applicants can apply for an Employment Authorization Document (EAD) concurrently with, or after filing of the AOS 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 AOS is denied. Our general office policy is to encourage filing of an EAD concurrently with the AOS application given its lengthy processing time, in the event it is needed at a later point. 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. EADs may be extended in increments of one year until the AOS application is adjudicated.
Permission to travel (advance parole authorization). All applicants for AOS may apply to the USCIS Service Center for permission to depart the United States temporarily after the adjustment application has been accepted for processing. It has been taking 90+ days to complete the processing of advance parole applications. The AOS 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). USCIS regulations which became effective on July l, l999 permit AOS 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 nonimmigrants (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 AOS I-485 Receipt Notice A similar rule 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.
Portability. 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 AOS 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.” This is a radical departure from existing rules and allows great flexibility to adjustment applicants. USCIS does expect to be provided with notification of any change of employment and a description of how that change in employment is in compliance with AC21 in that it is within the “same or similar occupation”.
Police certificates not required. If you choose consular processing, 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. AOS applicants instead provide their fingerprints for FBI and related agency processing, as well as arrest or conviction records if any.
Attorney can be present if Interview is scheduled. In the event of an interview at a local USCIS office, an attorney from our office can be present at the interview. In contrast, an attorney will not be present at the immigrant visa interview if you choose consular processing.
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. If there is a refusal of an immigrant visa by a Consul abroad, it is more difficult to obtain review. Also, if there is a processing delay while additional information/documentation is sought while an AOS application is pending, the applicant can continue to renew your EAD and advance parole documents until the issues are resolved. In contrast, if there is a problem at the Consulate, the applicant may be stranded outside the United States until the issues are resolved.
Potential job flexibility for concurrent filings. 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. To have this occur, 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).
Potentially faster processing for concurrent filings. 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., faster adjudication of the I-485 might speed up their applications. In addition, filing the I-485 earlier will also speed up a qualifying family member’s request for work authorization.
