Should I check Consular Processing or Adjustment of Status on my I-140 petition?

Foreign nationals who are applying for an employment-based green card, either through a self-petition (EB1A, NIW) or through an employer-sponsored petition, must file Form I-140, Immigrant Petition for Alien Worker. A common question is whether the foreign national should check “consular processing” or “adjustment of status” on the form.

If you plan to do a concurrent filing, where you file Form I-140 and Form I-485 at the same time, you should check the adjustment of status option on the form. In order to file the I-140 and I-485 concurrently, you must be in valid status in the U.S., have a visa immediately available in your green card category and you must be okay with waiting in the U.S. for several months until your travel authorization is approved. (Please note, however, that if you are in H-1B or L-1 status you may be able to continue traveling on your H or L visa while the adjustment is pending as long as certain requirements are met).

If you are not planning to do a concurrent filing because you need to travel or because there is not a visa immediately available in your green card category or for any other reason, it is generally best to check the consular processing option on the form. Checking the consular processing option gives you the most flexibility in the future.

For example, if you are on a visa that does not have dual intent, such as the F-1 visa, checking consular processing is important to allow you to keep traveling on your F-1 visa after filing the I-140. Although you may still get questions from Customs & Border Patrol about your intent after the I-140 filing, as long as you are able to explain to the officer that you do not plan to immigrate during that particular visit, you may be granted entry to the U.S. However, choosing to travel on a visa without dual intent after the I-140 is filed can be risky so it is important to discuss the options with an immigration attorney before traveling.

Another reason to check consular processing on the form is that if you check consular processing and later decide you want to adjust status instead, you can easily just file Form I-485 while you are in the U.S. and send an email to the National Visa Center to inform them you plan to adjust status. However, if you check the adjustment of status option and later decide you want to get the green card through consular processing, it is a much more onerous process to get the approved I-140 transferred to the National Visa Center and this can delay your green card application.