Questions and Answers > EB-5 Requirements

What are the advantages and disadvantages of AOS, compared with consular processing?

With a B1 or B2 visa, can I apply for I-485(AOS) while my I-526 is being processed with USCIS? Additionally, what are the advantages and disadvantage of AOS, compared with consular processing?

Answers

• A Olusanjo Omoniyi

  Immigration Attorney

  Answered on April 28, 2014

  You cannot apply for an I-485 (adjustment of status) while your I-526 is being processed with USCIS. In fact, your I-526 must be approved first before you can apply for I-485. Currently, an I-526 takes several months for approval. In the light of this fact, it is not likely that your I-526 will be processed within the duration of your B1/B2 visa considering that most B1/B2 visas are usually for about six months or less. Although, it is generally assumed that an adjustment of status (AOS) is preferred because the applicant is in the U.S., unlike consular processing where the applicant has to go through interview at the embassy/consulate in their home country, but the advantages are minuscule at best. Do not be discouraged that you may have to go through consular processing. The ultimate goal for you and your family is that your EB-5 application is granted and all of you end up with immigrant visa(s) that allow all of you to enter the U.S. Consult an EB-5 attorney to lay out a workable plan.

• Lei Jiang

  Immigration Attorney

  Answered on April 28, 2014

  AOS is preferable because it is less time consuming and burdensome. But in your case, because of the processing time of I-526, you probably will have no choice but to go through the consulate process.

• Ed Beshara

  Immigration Attorney

  Answered on April 23, 2014

  You will have to wait for the approval of the I-526 petition before you can apply for the conditional permanent residency. If you are in legal B-1 or B-2 status in the U.S., you can apply for adjustment to conditional permanent residency status in the U.S. If you are outside the U.S. when the I-526 petition is approved, you can apply through the U.S. consulate for the conditional permanent residency visa.

• Jinhee Wilde

  Immigration Attorney

  Answered on April 23, 2014

  You cannot file for AOS until the I-526 is approved. AOS is adjusting your status with an approved immigrant petition, which is the I-526. Because I-526 adjudication is taking nine months at an average, it is doubtful that it will be approved while you are here under B-1/B-2, which is normally six months or less. You may extend your stay as B-1/B-2 once, but more than that may be difficult. Unless we foresee any problems with consular processing in your home country, I advise my clients to do that rather than possibly going out-of-status and messing up the process or delaying things unnecessarily.

• Salvatore Picataggio

  Immigration Attorney

  Answered on April 23, 2014

  You need an I-526 approval to apply for adjustment of status. With processing times lacking in predictability, your current non-immigrant status may expire before obtaining the I-526 approval, making adjustment impossible. If you do happen to obtain I-526 approval while still in legal US status, adjustment would be a very good option. Otherwise, consulate processing is the only process if you are out of status.

• Kyle Barella

  Immigration Attorney

  Answered on April 23, 2014

  If you are eligible, adjustment of status is the preferred option. It is much easier for both the investor and the attorney. Consular processing may be time consuming and involves production of original documents.

• BoBi Ahn

  Immigration Attorney

  Answered on April 23, 2014

  The advantages of AOS I are that while it is pending, you can obtain a work permit or travel document, and if there are delays in processing the AOS application, you would be in the U.S., instead of waiting abroad. The advantage of consular processing is that in certain jurisdictions, immigrant visa processing at consulates are much quicker than AOS filed at USCIS.

• Lynne Feldman

  Immigration Attorney

  Answered on April 23, 2014

  This is a complicated question based on the facts of your situation. Since the amount of time the I-526 is pending, it will be very difficult to predict exactly when to come not to mention there is a dual intent problem f you come on a visitor visa with the intent to adjust status. It is usually faster to use the consular process in any case for EB-5 cases.

• Fredrick W Voigtmann

  Immigration Attorney

  Answered on April 23, 2014

  AOS is probably faster than consular processing, and in most cases, no adjustment of status interview is required. In order to apply, your I-526 must be approved and priority date current. You also must be in a valid non-immigrant status in the United States.

• Sufen Hilf

  Immigration Attorney

  Answered on April 23, 2014

  AOS has many advantages such as having work authorization and travel documents granted during the pending AOS. However, you have to maintain your nonimmigrant legal status (B-1/2) until USCIS receives your AOS application. With uncertainty of processing time of I-526 petitions, I am not sure if this is your better choice. Also, extension of B-1/2 after filing I-526 will make your extension of B-1/2 harder because you have the immigrant intent, which can be one of the reasons to deny your extension. Another advantage of AOS is the decision of AOS can be appealed to federal court assuming denial of your AOS can be challenged under the law. Consular processing may be a better choice for you if you cannot stay in the U.S. legally until approval of the I-526. For consular processing, you will have to deal with the National Visa Center after I-526 approval. Submit all the documents to NVC who will forward the file to the country of your last legal residence. You will then go to the consulate for an immigrant visa interview