Is it better for me to apply for Consular Processing or Adjustment of Status?

It depends on your circumstances. If you are outside of the United States, you must undergo consular processing to obtain an EB-3 visa and green card. Some disadvantages to Consular Processing include ineligibility for a work permit and needing to provide police certificates and the discretionary and wide latitude afforded to consular officers. Adjustment of Status (“AOS”) allows the applicant to complete their application for immigrant visa in the United States through a USCIS office instead of returning to their home country to complete the visa process. Some advantages of AOS include:

· the ability to appeal decisions

· the ability to apply for work authorization or Advanced Parole

· no need to maintain nonimmigrant status

· the ability to change positions within an employer or change jobs in a similar occupation classification

· no police certificate requirement.

Some disadvantages of AOS include having immigration violations such as unauthorized work which may render the applicant ineligible.

If I am present in the United States (on an F-1 visa for example) but my dependents (children or spouse) are abroad with no visa, can I apply for Adjustment of Status (AOS) while they apply for Consular processing separate from me?
It depends. If you were married or had children at the time your EB-3 Green Card application was approved and did so through adjustment of status, you can file for your spouse and children to come over under what is called “Follow-to-Join” benefits. The advantage to this is you do not have to file a separate form and they can interview at a designated U.S. Embassy or Consulate on an expedited basis. If you are in the United States and you plan on applying for a Green Card for your spouse or children and they are outside of the United States, you can file what is known as a Form I-824 together with your adjustment of status application (“AOS”).

After your AOS is approved, the Department of Homeland Security will notify the National Visa Center (“NVC”) and NVC will send you a letter notifying you that it received the petition and explain the next steps. It can take up to 6 weeks to receive this letter from NVC. Your spouse or children will then have to submit a visa application form (DS-260) and supporting documents and be scheduled for an interview at the designated U.S. Embassy or U.S. Consulate.

Can I travel outside of the United States while my Adjustment of Status (AOS) application is pending?

Yes, but a foreign national must give the government prior notice. While the I-485 (green card) application is processing, a foreign national must apply for Advance Parole if they wish to travel outside the U.S. When the third-party law firm files for the I-485 Adjustment of Status (“AOS”), they will also assist in filling out Form I-131 (Application for Travel Document) and sending it concurrently to United States Citizenship and Immigration Services (USCIS). After USCIS approves the Travel Document, the foreign national will have Advance Parole status and can travel abroad. Please note that the foreign national must wait for official I-131 approval before leaving the country. Failing to do so could result in a forfeited application, which prevent a foreign national from re-entering the country. USCIS will decide during the application process if Advance Parole is good for either a single entry or multiple entries.

Can I use Temporary Protected Status (TPS) to adjust status to an EB-3 visa?

Only in limited circumstances is it possible to adjust status from TPS to EB-3 unskilled. TPS is a temporary immigration status provided to nationals of certain countries experiencing problems. Congress created it in the 1990 Immigration and Nationality Act (“INA”). It provides a work permit and a stay of deportation for individuals from Venezuela, El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and Yemen. A pending TPS application does not grant a foreign national of these countries any rights. However, if a foreign national entered the country with a visa or “with inspection” and then received TPS, they may adjust their status (“AOS”) under extremely limited circumstances.

If a foreign national entered the United States without a visa, they are not eligible to adjust status except if they reside or are connected to certain states – Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota, Kentucky, Michigan, Ohio, Tennessee, Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. If a foreign national resides in any of these states, even if they entered the country without a visa, they are eligible to adjust status. This is incredibly complex and a foreign national should consult with an experienced, licensed immigration attorney.

Can I use asylum to adjust status in the U.S. to EB-3?

If your only status in the U.S. is “pending asylum”, you will most likely not be able to adjust status. This is due to a recent shift in USCIS policy to deny many Adjustment of Status (AOS) applications for individuals with only pending asylum and no other underlying status.

If you are in the U.S. as only pending asylum, you may want to consider Consular processing the EB-3 because, if your asylum case is denied, the Consular EB-3 could be a backup option to obtain your green card. We want to share the most recent trend with you. We strongly encourage that you consult with your asylum attorney.

Can I use my J-1 visa to adjust status to an EB-3 visa?

If you are a J-1 exchange visitor and wish to apply for an EB-3 visa, the rules of your J-1 visa will affect whether you can adjust status or must apply abroad for consular processing. First, you must determine if the home residency requirement applies to you. The home residency requirement means that some J-1 visa holders must return to their home country for a cumulative period of two years after completing their exchange program, to ensure that the home country gets to use the skills and experience of that J-1 visa holder.

Evidence of whether you are subject to the two-year home residency requirement may usually be found:

· On the J-1 visa stamp page in your passport. It may bear the phrase: "Bearer is (or is not) subject to 212(e). Two year rule does/does not apply."

· In the section in the lower left hand corner of your DS-2019 form labeled "preliminary endorsement."

If your visa or DS-2019 says you are not subject to 212(e) and the two-year rule does not apply, you may apply for an adjustment of status. However, if you are subject to the two-year rule, you will need to obtain a waiver through Form DS-3035. If your waiver request is approved, you will no longer be subject to the requirement, and you can proceed with applying for an EB-3 visa. You should consult an attorney to assist you with this process.

If I am adjusting status as an F-1 Student, when can I stop attending school?

A foreign national who resides in the United States on an F-1 student visa may stop attending school once their I-485 application is filed with United States Citizenship and Immigration Service (“USCIS”) and the third-party law firm has received the receipt notice in the mail. However, everyone’s situation varies and its best to speak with your attorney to determine the best time to stop attending school. It is generally advised not to stop studying until you are ready to begin work with your sponsoring employer.

Can I adjust status to EB-3 with my B1/B2 visa?

If you are currently in the U.S. on B status, it is unlikely that you will have enough time to start the LC process and complete the adjustment of status (AOS) from within the U.S.

If you are not in the U.S., but you have a B visa, an option is to start the EB3 process from outside of the U.S. Then, once your Labor Certification (LC) is approved and your priority date is current, you can plan a temporary trip to the U.S. on B status.

IMPORTANT NOTE: The B visa is not dual intent, meaning that you must have the intent to depart the U.S. after the temporary trip. You can enter the U.S. on a B visa after the LC is approved, but your intent at the time of entry must be for a temporary trip, leaving the U.S. at the end of your stay. You need to have evidence of your intent to return to your home country and continued ties to your home country. If your intent later changes, and you decide you want to adjust status after you enter, you can file the AOS, but we generally advise waiting at least 60 days from your last entry in B. Once you file for AOS, you must remain in the U.S. until Advanced Parole (travel parole) is issued, and you are not permitted to work until your Employment Authorization card is issued. Since this usually takes 5-8 months, it means that you need to be able to stay in the U.S. for this period of time without earning an income in the U.S.