In past newsletters (July/August 2000, January/February 2000, and November/December 1999) we discussed consular processing as a way of avoiding lengthy INS delays in the processing of adjustment of status applications (I-485’s). Throughout the year we have successfully short-circuited the I-485 process by sending attorney-certified copies of the approved immigrant visa petition (I-140) directly to the U.S. Consulate or Embassy overseas. We were able to pursue the consular processing while simultaneously pursuing an application for adjustment of status (I-485) filed with the INS.

It appears that this practice of simultaneous I-485 and consular processing has come to an end. In a cable dated September 27, 2000 [CLICK HERE for the full text], the State Department announced that consular processing should be commenced by first asking the INS to transfer the I-140 file to the consulate or embassy. That request to the INS is made on form I-824, and a copy of the INS receipt for the I-824 must be sent to the consulate abroad. The documents required for starting the consular processing must consist of the following:

Consulates may also accept applicants who were not last resident in that country in unusual circumstances and on a discretionary basis. An example might be a person who was last resident in China, but who is fearful of returning to China because of recent political activities or publications. In that case the consulate in Ciudad Juarez, Mexico might accept processing of the application.

This new policy is helpful because it enables those who are frustrated with I-485 delays to start consular processing, without having to wait for the INS to adjudicate the I-824 (which often takes over a year in itself). However, the new policy effectively ends simultaneous processing of both the I-485 and the immigrant visa application at the consulate, forcing the applicant to choose one or the other.

In a policy memo dated August 8, 2000 (entitled "Prohibition on Concurrent Pursuit of Adjustment of Status and Consular Processing"), the INS stated that the filing of an I-824 requesting consular processing will trigger cancellation of the I-485. [Click here for the full text of this memo].

The INS does appear to be processing the I-485’s faster now, and some cases are approved in less than a year. We do not know whether that trend will continue, but for now we recommend generally adjustment of status instead of consular processing for the reasons discussed in our May/June 1999 newsletter. However, if speed is the most important consideration, an applicant may still be able to save several months or even more than a year through consular processing.

^* 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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