-
Inconvenience/cost.
The primary
disadvantages are the inconvenience and expense
of traveling to the American Consulate to appear
for the required green card application interview.
Unlike the USCIS, the Department of State does not
waive the interview requirement for consular processing
and it applies to all family members seeking immigrant
visas irrespective of age.
The green
card application interview may well be scheduled
at a time that does not fit well with employment
considerations and personal schedules in the United
States; rather, the interview is scheduled at a
time that is convenient to the Consulate, not the
applicant. Appointment dates are generally difficult
to change and will result in additional delays in
the application process.
Also, and
MOST IMPORTANTLY, while attorneys of record may
routinely appear at adjustment of status interviews
for which their clients are scheduled by the USCIS
(inside the United States), the same does not hold
true for the Department of State. Attorneys are
not allowed to appear with their clients during
the client’s green card application interview
at the consulate.
-
Documentary
Requirements for Green Card Application through
Consular Processing
Documentary
requirements are different and generally more complicated
for green card applications through US consulates
abroad. Most applicants must obtain police clearances
from all countries in which they have resided for
more than six months since reaching the age of 16
if the U.S. Department of State considers such records
to be available. Those who have served in a foreign
military organization must obtain a record of their
military service.
The medical
examination will be scheduled with an approved physician
or medical clinic selected by the Consulate and
may require the applicant and accompanying family
members to appear in the foreign country up to one
week in advance of the interview date; medical examinations
conducted by USCIS-approved physicians or clinics
are not acceptable.
-
No Work
Authorization for Dependent Family Members
The Employment
Authorization Document application available to
Adjustment of Status applicants is not available
to applicants for immigrant visas through consular
processing.
Therefore
accompanying family members in H-4, O-3 and TD status
who have not been able to work in the United States
will continue to be unable to work until their immigrant
visas have been issued and they have been readmitted
to the United States as permanent residents.
Since the
Employment Authorization Card can normally be obtained
within three months, and the immigrant visa interview
may well take a year to be scheduled, this can result
in a considerable delay in obtaining employment
authorization.
-
No AC21
"portability"
AC21 section
106 allows for portability for Adjustment of Status
applicants if there are changes in the job offer
so long as the new job is for a “same or similar
occupation” and so long as the Adjustment
of Status is pending for at least 180 days. This
relief only applies to adjustment of status applicants.
Therefore,
someone who opts for a green card application through
consular processing rather than Adjustment of Status
is forgoing the possibility of porting their application
for permanent residence to another employer or to
another job if such an event occurs.
It is VERY
IMPORTANT to understand that if someone chooses
to submit a green card application through consular
processing, major changes which may occur in the
nature of the job duties or geographical location
of employment before the consular processing interview,
or prior to admission as an immigrant following
the consular processing interview, can serve to
render the approved labor certification and/or I-140
petition invalid.
If the employer
goes out of business, or is acquired by another
company which has no intention of continuing the
permanent resident process, there will be no basis
for approval of the consular processing application
for a permanent resident visa.
For green
card applications being filed as consular processing
cases, the offer of employment which provided the
initial basis of the filing of the consular processing
application must continue in effect until the applicant
has been granted lawful permanent resident status.
As you
can see from the discussion above, the decision
of deciding whether to submit a green card application
through consular processing vs. adjustment of
status is extremely important and may have an
incredible impact on your immigration status and
case. My best recommendation to you is to
not make the decision on your own and to contact
an immigration lawyer in the USA to guide
you through this process.
Best
of luck to you!
