Convenience
Adjustment of status is convenient in the sense that applicants may simply remain in the U.S. while the application is adjudicated, and need not travel abroad for an interview. In fact, for most employment-based petitions, no interview is required unless the applicant has previously been out of status; USCIS suspects fraud; portability is invoked; or USCIS randomly selects an applicant for an interview. If an interview is scheduled, attorneys are permitted to attend the interview with the applicant whereas no attorney representation is allowed at consulates.

The option to remain in the U.S. while the application is being processed is particularly important to aliens who have been unlawfully present in the United States for over 180 days in the past. Aliens who have been unlawfully present at some point for over 180 but less than 365 days are subject to a three year bar from readmission to the United States. Aliens who have been unlawfully present at some point for over 365 days are subject to a ten year bar from readmission to the United States.

The three and ten year bars are triggered by the alien’s departure from the United States. Therefore aliens who would subject themselves to the bar by leaving the U.S. are well advised to adjust status so that they do not have to leave the U.S. until after they have received permanent resident status. Once lawfully admitted to permanent resident status, aliens are no longer subject to the bars.
Finally, adjustment of status is convenient because applicants are not required to submit original documents in support of the application unless specifically requested to do so.

Quick Turn-Around Time
The biggest advantage of using consular processing is that it is much quicker than Adjustment of Status in most cases. Adjustment of status applications are currently taking up to one year to process. Granted, the I-140 is filed concurrently, which means that there is no additional time allocated for the I-140 processing. This processing time is subject to constant change, but for some time it has been clear that even though the I-140 petition and consular processing applications are filed consecutively rather than concurrently, consular processing is still quicker in most cases.

The alien choosing between consular processing and adjustment of status should consult the current I-140 and I-485 processing time reports for the service center at which his applications would be adjudicated, and compare them to the following time table for a typical consular processing application:

• I-140 Processing
  (Estimate processing time based on processing time report)
  
• Time from I-140 approval to applicant’s receipt of fee bill from National Visa Center
  (6-8 wks)
  
• Time from payment of fees to receipt of Packet 3
  (4-6 wks)
  
• Time from submission of Packet 3 application materials to receipt of Appointment Notice
  (6-8 wks)
  
• Time from receipt of Appointment Notice to date of actual interview
  (4 wks)
  

Total = 5-6 months, plus I-140 Processing Time*

* Please note that all processing times are estimates and are subject to unforeseen delays and administrative changes. Processing times also vary from consulate to consulate. In some cases aliens with criminal records or with names similar to people with criminal records will be required to obtain an additional set of fingerprints to be run through the FBI’s National Crime Identification Center (NCIC) before an immigrant visa interview can be scheduled. This will delay a case by a couple of months.

Employment Authorization
All adjustment of status applicants are permitted to obtain employment authorization, which allows dependent family members to work during the pendancy of the application and allows the principal applicant to use portability to work for a new employer once 180 days have passed and the I-140 has been approved.

Administrative Remedies are Available
If USCIS denies an adjustment of status application, the alien may be placed in removal proceedings and the application could be renewed before an immigration judge. Alternatively, if the alien is maintaining H-1B status after the denial of the adjustment of status, then he cannot be placed into removal proceedings. He could appeal the denial of his adjustment of status application in federal district court.