Consular Processing

Because of INS delays in processing applications for adjustment of status (I-485’s), many green card applicants are seeking the alternative of consular processing. A discussion of this option, is included in our May/June 1999 and our November/December 1999 newsletters.               

In our last newsletter, we discussed the possibility of pursuing consular processing at the same time an adjustment of status application was pending. In order to process the immigrant visa application, the consular officers require the immigrant visa petition (I-140). Since the I-140 is also needed by the INS to process the I-485, it may be difficult to pursue consular processing without first withdrawing the I-485. We reported that the INS would no longer send INS-certified I-140’s to the consulates, and that the national office of the State Department discouraged copies of the I-140 to be sent to the consulates directly from the attorneys.

However, all of the U.S. Consulates in India (Mumbai, Chennai and Delhi) are currently accepting attorney-certified I-140’s, and for now we are enjoying great success with this alternative. The applicant can receive a case number from the consulate within a few days of submission of the attorney-certified I-140, the final interview will be scheduled within a month, and the immigrant visa will be issued a month or two after that. This option is available only if an I-485 has already been filed with the INS.

Processing of the immigrant visa by the U.S. Consulate based on the attorney-certified I-140 is discretionary. There are several factors that determine whether the U.S. Consulate will accept the case for processing. A major factor is the staffing levels and current workload of the consulate. EB-1 and EB-2 cases are given priority, whereas an EB-3 case is more likely to be rejected. The consulate is more likely to accept the case if the applicant can demonstrate hardship caused by the delay in I-485 processing. Although not stated in the consular guidelines, we suspect that an early priority date that can survive cutoff date regression (discussed below) will be a major factor in the decision by the consulate to accept the case.

Adjustment Of Status Processing

The INS has finally started to move on processing adjustment of status (I-485) applications, and continues to announce that I-485’s are its major priority for 2000. Although we have seen very little activity by the California Service Center, the other service centers (Texas, Vermont, and Nebraska) have been approving a few of the older cases (those I-485’s that were filed several years ago). Although those few approvals are not cause for celebration, they still represent an improvement over most of 1999, during which there were virtually no approvals at all, other than a few "age-out" cases (see, our November/December 1999 Newsletter).

Also, there has been renewed activity by all of the INS service centers in scheduling fingerprinting in the older I-485 cases. That is significant because the I-485 cannot be approved until fingerprints are checked by the FBI. The FBI clearance becomes obsolete after 15 months, requiring a second set of fingerprints.

With these developments we are hopeful that we will soon see more I-485 approvals, at least in the cases filed before 1999.

Per-Country (India and China) Quota Backlogs

The India and China quota backlogs were discussed in our July/August 1999 newsletter. Since August 1, 1999, the cutoff dates for India and China have been current, and there has been no backlog. This temporary situation has permitted hundreds of thousands of employment-based immigrants from India and China (who have approved I-140’s) to file applications for adjustment of status.

However, the reason the quota backlog disappeared is that the INS stopped processing I-485’s and therefore stopped making demands on the quota. That situation resulted in thousands of unused immigrant visas for the 1999 fiscal year (which ended September 30, 1999). Those immigrant visas can never be recaptured (that is, the unused immigrant visas are not carried over to future years and are therefore gone forever). The result is that INS delays have nullified the laws passed by Congress that provide for a certain number of immigrant visas to be issued each year.

In any event, now that the INS is approving I-485’s, and the U.S. Consulates in India are approving many more employment-based immigrant visa applications than they have in the past, the per-country quota for India and China is again being used up. Since there are only 9,800 employment-based immigrant visas available for each country (including those for all dependent spouses and children!) it will not be long before the cutoff dates must again regress. To find out the current cutoff dates, you can access the State Department visa bulletin at http://travel.state.gov/visa_bulletin.html.

Once the cutoff dates regress, the quota backlogs of two to four years for those born in India or China could return to stay, and it is likely they will increase.