U.S. Citizenship and Immigration Services (“USCIS”) service center in the United States

U.S. consulate or U.S. embassy in applicant’s “home” country

Application may be filed concurrently with, or at any time after the filing of, the I-140 Immigrant Petition – even if the USCIS has not yet decided the I-140 Petition, provided one’s “priority date” is current.

Application must wait for the I-140 Immigrant Petition to be approved and for the National Visa Center (NVC) to issue instructions before formally filing documents with the NVC to progress a Consular Processing case.

Must meet statutory requirements to be eligible apply for adjustment of status. Generally, may not have worked without authorization, must not have failed to maintain lawful nonimmigrant status for more than 180 days since last entry, must have entered the U.S. legally, and must not be deportable.

Must meet statutory requirements to be eligible to apply for an Immigrant Visa. Generally, if now present in the U.S., must not have overstayed permission to remain in U.S. by more than 180 days.

Once adjustment application is filed, no longer required to continue to maintain nonimmigrant status, though doing so is often a good idea.

If present in the U.S., must continuously maintain lawful nonimmigrant status until time of departure for interview.

May be waived by USCIS, and in many employment-based cases the interview is waived

Interview with U.S. consular officer is mandatory for all applicants (and all applying family members) of any age

Required of all applicants. Examination must be conducted in the U.S. by a “civil surgeon” designated by USCIS.

Required of all applicants. Examination must be conducted in country where U.S. consulate is located by a “panel physician ” designated by U.S. consulate.

Not required as application is filed in the U.S.

Applicant must travel to U.S. consulate abroad to be interviewed and receive decision on immigrant visa application

Travel is restricted for a short period of time immediately following the filing of the adjustment application.

None (other than any travel restrictions that otherwise would be in effect)

Restriction is typically 2-3 months for issuance of an Advance Parole travel document. If applicant has a valid H-1B/H-4 visa or a valid L-1/L-2 visa, and is maintaining H or L nonimmigrant status , no travel restriction exists.

If applicant must apply for an advance parole travel authorization, duration may be as long as 3 months but could be shorter (advance parole processing times fluctuate between 2 and 3 months typically).

Not applicable

Advance parole travel authorization may be requested to enable return to U.S. from abroad during pendency of application. Advance parole valid for 1 year at a time; authorization is renewable.

Persons holding valid H-1B/H-4 or L-1/L-2 visas and valid I-797 Approval Notices may rely on their H or L visas to return to the U.S. from abroad.

Same as those otherwise necessary (in other words, whatever documents would be needed if there were no Consular Processing case in motion)

USCIS filing fee is $305 but this fee is usually included in the overall adjustment of status application fee

Not applicable

Employment Authorization Document (EAD) may be requested by any adjustment applicant once an adjustment of status application is filed. USCIS processing time typically runs 1-3 months).

Work authorization is not available to consular processing applicants, unless applicant is already in a work-authorized status or otherwise has work permission.

Dependent family members generally cannot work until they become U.S. permanent residents.

EAD is valid for either 1 year or 2 years at a time and is renewable

Not available

USCIS filing fee is $340 but this fee is usually included in the overall adjustment of status application fee

Not applicable

As with almost everything, “it depends.” The USCIS operates two Service Centers that decide adjustment of status cases. Each center has its own processing time for “I-485” cases. Processing times can be viewed at USCIS’ website at https://egov.uscis.gov/cris/processTimesDisplay.do. The Nebraska Service Center and the Texas Service Center are the two centers that decide Employment-Based adjustment of status cases.

As with almost everything, “it depends.”On average, it takes 5-9 months from the time the USCIS approves the employment-based immigrant petition until the U.S. consular interview takes place. Most interviews do not take place as quickly as 5 months from petition approval; most tend to occur around 7 months after the USCIS approves the immigrant petition. These estimates can (and do) vary based on a variety of factors. In D&S’ experience, consular processing has tended to take less time to complete than adjustment of status.

If the USCIS denies adjustment of status and the applicant otherwise holds valid nonimmigrant status (such as H-1B or L-1), it is usually possible to revert back to that nonimmigrant status.

If the U.S. consulate does not issue an Immigrant Visa, the applicant might be able to return to the U.S. if he/she possesses a valid nonimmigrant visa, such as H-1B/H-4 or L-1/L-2, and will return to the U.S. to resume employment for which H or L classification was previously approved.