INS DISCOURAGES CONSULAR PROCESSING WHILE I-485 IS PENDING (10-23-00)

In policy statements issued over the past six months, the INS has made it clear that it considers attempts to pursue consular processing to be an abandonment of a pending application for adjustment of status (I-485). [CLICK HERE to read the text of the latest memo, dated August 8, 2000].

This memo makes it clear that an I-824 (a request to send the approved immigrant visa petition [I-140] to the consulate abroad) will trigger proceedings to cancel the I-485. Those proceedings will commence with a written notice that will give the petitioner the opportunity to elect to continue either the consular processing or the I-485.

A second I-140 that requests consular processing will also trigger the I-485 cancellation process.

However, it does not appear that consular processing that is commenced via an attorney-certified I-140 will be affected by this policy. [CLICK HERE for our discussion of consular processing based on attorney-certified I-140’s]. For one thing, there is really no way that the INS would learn of the attorney-certified I-140 consular processing, because all communication involving that type of case is directly with the consulate, without the involvement of the INS. Even if the INS somehow were to learn of the consular processing, its policy would first require written notice and an opportunity to stop the consular processing, before it cancelled the I-485.

It may be that the U.S. embassies and consulates will stop accepting consular processing cases based on attorney-certified I-140’s, and will instead require the filing of an I-824, based on a cable issued by the State Department on September 27, 2000. [CLICK HERE for text of that cable]. However, attorney-certified I-140 consular cases that already have been accepted for processing probably will not be affected by any of these developments.