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.

Most U.S. Consulates abroad will not begin the immigrant visa processing based on an attorney-certified I-140. Instead they require the original I-140 to be sent to them by the INS, a process that may take over a year and requires withdrawal of the I-485.

However, some U.S. Consulates are accepting attorney-certified I-140’s. Currently the best place to apply appears to be the U.S. Consulate in Mumbai, India (formerly Bombay), although the other two U.S. immigrant visa issuing posts in India (Chennai and New Delhi) do not appear to be as receptive (although they are accepting some cases). In order to take advantage of processing in Mumbai, applicants (or their spouses!) must have lived in the Mumbai consular district for at least 90 days since reaching age 16.

Other U.S. visa issuing posts may also accept attorney-certified I-140’s, including the U.S. Embassy in Paris and the American Institute in Taipei.

As mentioned in our November/December 1999 newsletter, this procedure is disfavored by the State Department, and recently the INS has voiced its own objection to it, so we do not know how much longer this will be an effective way to avoid I-485 delays.

However, the INS recently has been processing and approving adjustment of status (I-485) applications at a fairly fast pace, and may be making a dent in its huge backlog of over a million cases. One priority is cases in which the fingerprinting was completed between 12 and 15 months ago. Those cases are a priority because the validity of the fingerprints will expire soon, and the INS wishes to avoid the expense of taking the fingerprints a second time. For that reason, cases filed as recently as 1999 are being approved, whereas older cases in which the fingerprints have expired are not. Our clients whose I-485 fingerprints were taken between 12 and 16 months ago should contact us (by email) so we can alert the INS.

In a reversal of past policy, the California Service Center of the INS recently announced that it will expedite employment-based immigrant visa petitions (I-140’s) for those applicants who have children who are within 6 months of reaching their 21^st birthday. However, all of the Service Centers appear to be reluctant to expedite I-140’s in other circumstances, even in compelling situations where the applicant’s 6-year limit in H-1B is about to expire.

With all of the consular processing and I-485 approvals, it is likely that the India quota will become severely backlogged soon. In June 2000, there is a relatively favorable cutoff date of June 1, 1999 in the EB-2 category. However, the EB-3 category is backlogged to February 1, 1997.

The cutoff dates for China are already pretty bad, and may get worse. The EB-2 cutoff date is September 1, 1997, and the EB-3 cutoff date is January 1, 1997.

Also, in addition to cutoff date regression (which controls the order in which the green card applications are approved based on the date of filing the labor certification or I-140), we are likely to face visa unavailability for the employment-based immigrants from India and China (at least in the EB-2 and EB-3 categories). Once the immigrant visas are used up for this fiscal year, there can be no more permanent residence approvals in those categories until the start of the next fiscal year (October 1, 2000). That can happen at any time, even in the middle of the month. So even if the State Department visa bulletin states that an immigrant visa will be available during the upcoming month, if the quota is exhausted the INS will not accept or approve the I-485, and the consulate cannot issue an immigrant visa.

Legislation pending in Congress may provide some relief, by applying unused immigrant visas allocated to other countries to India and China. However, passage of such a law is at best uncertain.

^* The purpose of this newsletter is to inform potential clients of the type of legal issues our firm handles. It is not intended to establish any attorney/client relationship, and we accept no responsibility for the accuracy of the information provided. We cannot discuss or clarify any of the information contained in our newsletters, except with our existing clients.

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