Consular Processing Available To Some Who Have an Adjustment of Status Pending

The Department of State’s Visa Office in Washington D.C. has recently issued a cable to all U.S. Embassies and Consulates that brings some relief to individuals who have applied for adjustment of status and who now wish to consular process. Individuals who qualify under the memo should give serious consideration to the prospect of Consular processing in light of the extraordinary INS delays experienced in recent years.

Every employment-based green card requires the approval of Immigrant Petition for Alien Worker (I-140) by the INS. I-140 Petitions are filed at one of four INS Service Centers located in California, Texas, Vermont and Nebraska, depending on where the employer is located. At the time the I-140 is filed, the alien must decide where they would like to obtain their green card. An application made while an individual is in the United States is known as an Adjustment of Status. The same person may instead decide to process at a U.S. Embassy or Consulate abroad and enter the U.S. with an immigrant visa.

Some people may change their minds in the middle of the process. He/she may have initially wanted to file for Adjustment of Status, and then later decided to do Consular Processing upon learning that an Adjustment may take as long as two and one-half years before the interview. To seek Consular processing after having filed an Adjustment of Status is a time-consuming and often difficult task. The majority of Consular Processing cases must be sent to the National Visa Center (NVC) in Portsmouth, New Hampshire, for preliminary processing. It is the NVC that ultimately forwards the case to the appropriate consulate for the interview.

The NVC cannot forward the case to the Consulate until it has received a copy of the approved I-140 from the INS Service Center. A request to forward an approved I-140 from the Service Center to the National Visa Center (I-824) can take more than a year in some jurisdictions. In the meantime, the case remains stagnant for a year or more. In addition, once the NVC receives the I-140, the processing time can take up to six months before the case is sent to the Consulate.

The Visa Office’s cable permits individuals who have filed an I-824 to consular process, even if the I-140 has not been sent from the Service Center to the NVC. The first part of the cable requires posts to directly accept for consular processing a case where an I?140 was approved for adjustment of status and an I?824 requesting consular processing has been filed for an individual who was last resident in the post’s jurisdiction. The second prong of the cable authorizes posts to accept, on a discretionary basis, persons not considered resident in that consular district.

In both instances, the individual must submit an I-140 Petition receipt notice of filing with the Service Center, a copy of I?140 petition as filed with support documents-?need not be certified, a copy of the I?824 filing receipt, a copy of the Adjustment of Status filing receipt, and other evidence.

The U.S. Consulate in Ciudad Juarez–across the border from El Paso, Texas– has already noted its willingness to accept such third country national cases. However, applicants need to be concerned with inadmissibility issues including the three- and ten-year bars for unlawful presence. In addition, the Consulate warns that all of the paperwork must be properly completed and submitted to avoid delays and visa refusals