Understanding Adjustment of Status vs. Consular Processing for EB-3 Unskilled Visa

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What is Adjustment of Status?

Adjustment of status is available to individuals who are already present in the United States under a nonimmigrant visa status or other qualifying circumstances. To apply for adjustment of status, applicants file various forms, including the I-485 (Application to Register Permanent Residence or Adjust Status), I-765 (Application for Employment Authorization), and I-131 (Application for Travel Document). These forms are filed with the United States Citizenship and Immigration Services (USCIS). Adjustment of status allows applicants to remain in the US while their green card application is being processed.

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What is Consular Processing?

Consular processing is applicable to individuals who are outside the United States or are ineligible for adjustment of status. With consular processing, applicants file the DS-260 (Online Immigrant Visa Application) through the Department of State's Consular Electronic Application Center (CEAC). This process involves attending an interview at a US embassy or consulate in their home country or country of residence.

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Key Differences Between Adjustment of Status and Consular Processing

Both Adjustment of Status and Consular Processing are methods to obtain a green card, but they differ in terms of location and filing procedures. Adjustment of status is for individuals already present in the U.S., while Consular Processing is for those outside the country. Understanding the specific requirements and procedures associated with each process is crucial to determine the most appropriate approach for an individual's circumstances.

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Practical Differences in the Processes

Adjustment of Status:

• Applicant can remain in the U.S. while application is pending
• Includes work authorization (EAD) during processing
• Filed with USCIS

Adjustment of Status:

• Applicant must attend interview abroad
• Receives Immigrant Visa first, then green card upon entry
• Filed through Department of State

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Eligible Visa Types for Adjustment of Status

Certain nonimmigrant visa statuses in the United States may be eligible to adjust their status to a green card (permanent resident status) through the filing of Form I-485. The eligibility for adjustment of status depends on various factors, including the specific visa category and individual circumstances.

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Common Eligible Visa Categories

1. Employment-Based Visas: Nonimmigrant visa holders in employment-based categories such as H-1B (specialty occupation workers), L-1 (intracompany transferees), O-1 (individuals with extraordinary ability), and E-1/E-2 (treaty traders/investors) may be eligible to adjust their status through the EB-3 Unskilled visa program.
2. Student Visas: F-1 (academic students) and J-1 (exchange visitors) visa holders who meet certain criteria, such as having a job offer from a sponsoring employer and fulfilling the requirements of the EB-3 Unskilled visa program, may be able to adjust their status.
3. Treaty Trader/Investor Visas: E-1 (treaty traders) and E-2 (treaty investors) visa holders who meet the eligibility requirements of the EB-3 Unskilled visa program and have a qualifying job offer may be eligible to adjust their status.
4. Other Nonimmigrant Visa Categories: In certain circumstances, individuals holding other nonimmigrant visa statuses, such as TN (NAFTA professionals), O-2 (support personnel for individuals with extraordinary ability), or P (athletes, artists, entertainers) visas, may be eligible for adjustment of status if they meet the requirements of the EB-3 Unskilled visa program.
5. Spouses of nonimmigrant visa holders, for example individuals with F2 (spouse of F1 visa holder) or H4 (spouse of H1B visa holder) visas, have the opportunity to apply as the principal applicants for adjustment of status, enabling them to pursue a green card and transition from their dependent visa status to permanent residency in the United States.

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Countries Eligible for Consular Processing

Although a non-immigrant visa holder (F-1 for example) from any country can file an immigrant visa petition (EB3 for example), non-immigrant visa holders cannot file an I-485 change of status unless they reside from a country that has an available visa allocation at the time of the filing.

Priority Dates and Backlogs

• Applicants must process from home country if no visa allocation available
• "Priority Date" determines when processing can begin
• Significant backlogs exist for countries like India, China, Philippines

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BDV's Policy on High-Backlog Countries

BDV has elected not to provide its services to immigrant visa applicants from China or India because BDV's services would be unaffordable.

Cross-Chargeability Exception

"Cross-chargeability" is a useful exception that allows applicants to use their spouse's country of birth if it has a faster processing time.

How Cross-Chargeability Works

Example: If you were born in India but your spouse was born in France, you may use France's visa allocation.