The EB-3 visa provides a pathway to permanent residency in the United States for skilled workers, professionals, and unskilled workers. Once an employer’s petition (Form I-140) for an EB-3 visa is approved, applicants must choose between two routes to obtain their Green Card: Adjusting Status or Consular Processing. Each method has its own procedures, advantages, and potential challenges. This guide will explore these two processes in detail, highlighting their differences to help applicants make an informed decision.

Adjusting Status

Adjusting Status allows individuals who are already in the United States on a valid non-immigrant visa to change their status to that of a permanent resident (Green Card holder) without leaving the country. This process is managed by the U.S. Citizenship and Immigration Services (USCIS).

Eligibility for Adjusting Status

To be eligible for Adjusting Status, applicants must:

• Be physically present in the United States.
• Have entered the U.S. legally.
• Hold a valid non-immigrant visa status at the time of application.
• Have an approved I-140 petition and a current priority date.

The Adjusting Status Process

1. Filing Form I-485
   • The primary step in the Adjusting Status process is filing Form I-485, Application to Register Permanent Residence or Adjust Status. This form is submitted to USCIS along with supporting documents, such as the applicant’s birth certificate, passport, I-94 travel record, and evidence of the approved I-140 petition.
2. Supporting Documentation
   • Applicants must submit various documents to support their I-485 application. This may include medical examination results (Form I-693), photographs, and evidence of financial support.
3. Biometrics Appointment
   • After submitting Form I-485, applicants will receive a notice for a biometrics appointment. During this appointment, USCIS will collect the applicant’s fingerprints, photograph, and signature for background checks.
4. Interview
   • USCIS may schedule an interview to verify the information provided in the application and assess the applicant’s eligibility. During the interview, applicants should bring all original documents and any additional evidence requested by USCIS.
5. Approval and Green Card Issuance
   • If USCIS approves the application, the applicant will receive their Green Card by mail, granting them permanent residency in the United States.

Advantages of Adjusting Status

1. No Need to Leave the U.S.
   • One of the main advantages of Adjusting Status is that applicants do not need to leave the United States to complete the process. This is particularly beneficial for individuals who have established lives in the U.S. and prefer to avoid travel disruptions.
2. Work and Travel Authorization
   • While the I-485 application is pending, applicants can apply for an Employment Authorization Document (EAD) and Advance Parole (AP). The EAD allows them to work legally, and AP permits them to travel abroad and re-enter the U.S. without abandoning their adjustment application.
3. Legal Status Protection
   • Adjusting Status provides a form of legal protection for applicants who may face challenges renewing or maintaining their non-immigrant visa status. Once the I-485 is filed, applicants generally have more stability in their immigration status.

Challenges of Adjusting Status

1. Processing Times
   • The Adjusting Status process can be lengthy, with processing times varying depending on the applicant’s location and USCIS workload. Delays may occur due to backlogs or additional requests for evidence.
2. Ineligibility Due to Violations
   • Applicants who have violated the terms of their non-immigrant visa, such as overstaying or unauthorized employment, may be ineligible for Adjusting Status. It is essential to maintain lawful status throughout the process.

Consular Processing

Consular Processing is an alternative route for obtaining a Green Card through the EB-3 visa. It involves applying for an immigrant visa at a U.S. Embassy or Consulate in the applicant’s home country or country of residence. This process is managed by the U.S. Department of State.

Eligibility for Consular Processing

To be eligible for Consular Processing, applicants must:

• Have an approved I-140 petition and a current priority date.
• Be residing outside the United States or willing to travel to a U.S. Embassy or Consulate for the interview.

The Consular Processing Procedure

1. National Visa Center (NVC) Processing
   • Once USCIS approves the I-140 petition, it is forwarded to the National Visa Center (NVC). The NVC will review the petition, assign a case number, and send instructions to the applicant for the next steps.
2. Submission of Form DS-260
   • Applicants must complete Form DS-260, Immigrant Visa and Alien Registration Application, online. This form collects information about the applicant’s background, travel history, and eligibility.
3. Document Submission
   • The NVC will request various supporting documents, including the applicant’s birth certificate, marriage certificate (if applicable), police clearance certificates, and passport copies. These documents must be submitted to the NVC for review.
4. Medical Examination
   • Applicants must undergo a medical examination by a panel physician approved by the U.S. Embassy or Consulate. The results of the medical examination are required for the visa interview.
5. Visa Interview
   • The NVC schedules a visa interview at the U.S. Embassy or Consulate. During the interview, a consular officer will review the application, verify the documents, and assess the applicant’s eligibility. Successful applicants will receive an immigrant visa in their passport.
6. Entry to the U.S. and Green Card Issuance
   • Upon receiving the immigrant visa, applicants can travel to the United States. At the port of entry, U.S. Customs and Border Protection (CBP) officers will inspect the visa. Once admitted, applicants will receive their Green Card by mail.

Advantages of Consular Processing

1. Processing Speed
   • Consular Processing can be faster than Adjusting Status, especially in cases where the U.S. Embassy or Consulate has fewer backlogs. This can be advantageous for applicants who seek a quicker resolution.
2. Clear Process and Guidance
   • The Consular Processing procedure is generally straightforward, with clear instructions provided by the NVC and the U.S. Embassy or Consulate. Applicants receive step-by-step guidance throughout the process.
3. No Requirement to Maintain Non-Immigrant Status
   • Unlike Adjusting Status, Consular Processing does not require applicants to maintain a valid non-immigrant visa status while the application is pending. This is beneficial for individuals whose non-immigrant visas are expiring.

Challenges of Consular Processing

1. Travel Requirements
   • Consular Processing requires applicants to travel to a U.S. Embassy or Consulate for the visa interview. This can be inconvenient and costly, particularly for individuals who are already residing in the United States or have limited travel resources.
2. Uncertainty at the Port of Entry
   • Although applicants receive an immigrant visa through Consular Processing, their final admission to the U.S. is determined by CBP officers at the port of entry. Any issues or concerns raised by CBP can impact the entry process.
3. Limited Appeal Options
   • If a visa application is denied during Consular Processing, the options for appeal or review are limited. Applicants may need to address any issues and reapply, which can result in additional time and effort.

Key Differences Between Adjusting Status and Consular Processing

1. Location
   • Adjusting Status occurs within the United States, allowing applicants to remain in the country throughout the process. Consular Processing requires applicants to complete the process at a U.S. Embassy or Consulate abroad.
2. Travel
   • Adjusting Status does not necessitate travel outside the U.S., whereas Consular Processing involves traveling to a U.S. Embassy or Consulate for the visa interview.
3. Processing Times
   • Adjusting Status may involve longer processing times due to USCIS backlogs, while Consular Processing can be faster, depending on the U.S. Embassy or Consulate’s workload.
4. Work and Travel Authorization
   • Adjusting Status applicants can apply for an EAD and Advance Parole, allowing them to work and travel while their application is pending. Consular Processing does not provide these interim benefits.
5. Eligibility Requirements
   • Adjusting Status requires maintaining lawful non-immigrant status in the U.S., while Consular Processing does not have this requirement.

Conclusion

Choosing between Adjusting Status and Consular Processing is a significant decision for EB-3 visa applicants. Each process has its own set of advantages and challenges, and the choice will depend on the applicant’s individual circumstances, preferences, and immigration goals. Understanding the differences between these two pathways is essential for making an informed decision and successfully navigating the journey to obtaining a Green Card. Consulting with an immigration attorney can also provide valuable guidance and support throughout the process.

For more details reach us at
Website: www.bhslgroup.com

Phone: +1-212-347-6364

Email: info@bhslgroup.com