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Should I chose an adjustment of status or immigration visa?

Recently, my I-526 petition has been approved. I have been on an H-1B visa since 2009 with a clean history of legal status. I know that technically I should apply for adjustment of status, but if needed, I can also go back to my home country for an immigration visa interview. Based on the current processing time, which option is better for me?

Answers

  • Avatar

    Marisa Casablanca

    Immigration Attorney
    Answered on

    Choosing consular processing for an immigrant visa vs. change of status to permanent residency is a personal choice. The safest is to return to your country and consular process. By doing that, you do not have to worry about maintaining status in the U. S. while you wait for the approval.

  • Avatar

    Salvatore Picataggio

    Immigration Attorney
    Answered on

    It may be faster to go through the consulate, but there is no right of appeal if things go sideways. Being here, you can get employment authorization in about five months and start working while waiting for your interview. Also, USCIS will issue an RFE if they need more things. That said, it takes forever to get to that interview. So it may come down to preference and anything else in your history to be concerned about.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You should discuss both options with your EB-5 filing attorney. Consular processing may be much faster, but it also depends on how tough your consulate post is and the chances of an immigrant visa refusal.

  • Avatar

    BoBi Ahn

    Immigration Attorney
    Answered on

    If you are currently living/working in the U.S., adjusting status in the U.S. may be the way to go since upon filing, you would no longer have to be tied to your H-1B status/employment and can also file for an employment authorization document (EAD) and advance parole, which would allow you to work and travel during the adjustment pending period.

  • Avatar

    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Since you have an approved I-526, you should stay and process I-485 in the U.S. However, advisably, it is in your best interest that you should consult an immigration attorney to discuss the two options. Also, there are number of issues you should consider before proceeding, such as processing times, effects on your family, etc.

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    Stephen Berman

    Immigration Attorney
    Answered on

    Do you mean the processing time for adjustment of status? Consular processing is usually a bad option, due to the risk of arbitrary denial and security delays.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    I would file an I-485 here.

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    Robert West

    Immigration Attorney
    Answered on

    Adjustment of status is always the better option.

  • Avatar

    Jinhee Wilde

    Immigration Attorney
    Answered on

    These days, under the Trump administration that required interviews for all I-485s, the processing time for adjustment with approved immigration petitions (I-526 or I-140) are taking a year or more. Thus, unless you are from some country whose consulate posts are reporting AP or denial of EB-5 visa applications recently, I would advise the immigrant visa route, as it will take six months instead of a year or more. Please note, however, the Visa Bulletin for September is out now and discuss these options with your immigration attorney based on all these factors.

  • Avatar

    Xiaojie Marta Meng

    Immigration Attorney
    Answered on

    Depending on your country of birth, the answer could vary. If you are from mainland China, the wait time could be significant and you might not have the non-immigrant legal status to last long enough until the date you file application for adjustment of status. In that case, choosing consular processing will be safer and easier to switch route, if needed.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Processing abroad is usually faster. However, it depends on the post, as some consulates are very tough and many officers are not familiar with EB-5.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    What did you select when you filed the I-526? That option is probably the most efficient at this stage unless you will have difficulty getting country documents, such as a police clearance from every country (not the U.S., where you have lived for six months or longer.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    First, what did you indicate on your I-526 form? If adjustment, then USCIS will not forward your approved I-526 to NVC; in this case, you need to file Form I-824 to request that USCIS forward the case to NVC. If this is your situation, I would advise filing AOS.

  • Avatar

    Kyle Barella

    Immigration Attorney
    Answered on

    Given the long processing time for adjustment of status, and the fact that one does not know what will happen during the adjudication to possibly derail their adjustment application, I always recommend obtaining an immigrant visa through consular processing.

  • Avatar

    Charles Foster

    Immigration Attorney
    Answered on

    You should always choose adjustment of status if you have that option over applying for your immigrant visa. By choosing adjustment of status you can remain in the U.S.; you do not have to take a risk that you will be delayed at the consular post abroad and, furthermore, if there is any technicality you will be able to remain in the U.S. while the issues are being resolved, rather than waiting abroad. Furthermore, in the U.S. you are covered by the Constitution and you have a certain degree of due process; abroad, you have very limited legal rights available to you. Furthermore, after you apply for adjustment of status, within four months you can get a travel document and work authorization.

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