Consular Processing–a Better Choice for Some Immigrants

With USCIS phasing out interview waivers for adjustment applicants in employment-based immigrant visa categories, consular processing can sometimes be the better option.

Under U.S. law, some persons who apply for immigrant status can “adjust” into it if they are already legally present in the United States. For example, someone who is a student in valid F status can apply to adjust status to permanent resident if they marry a U.S. citizen who then files an immigrant visa petition for them. Similarly, someone who is in an employment authorized nonimmigrant visa category can adjust status based on an I-140 immigrant petition and labor certification filed on their behalf by a prospective employer. Such individuals and many others have been able to benefit from filing an I-485 application to adjust status, to be adjudicated and approved once a visa number is available for them.

The advantages of this “adjustment” process are considerable—the process takes place entirely in the U.S., and counsel can be present. Moreover, federal regulations (8 CFR 245.6) require that persons adjusting to permanent resident status in the United States have a personal interview before an immigration officer, but also give USCIS the right to waiver the interview requirement when it concludes that an interview is unnecessary. In practice, this has meant that for some years most employment-based adjustments—that is, someone adjusting status from a non-immigrant status to an employment based immigrant status—had the personal interview requirement waived. Those individuals and their attorneys could count on a paper adjudication that did not require them to attend an appointment at a CIS field office.

No more. USCIS has recently announced that it is phasing out interview waivers for employment-based immigrant visa categories. Such applicants must now be prepared to discuss their professional backgrounds, experience, and the specifics of the position being offered to them with an immigration official. If that official doesn’t find the circumstances—or the applicant–credible, the adjustment could be denied.

This doesn’t mean that adjustment of status is riskier than consular processing. The advantages it offers are still considerable—applicants already present in the US can minimize disruptions to their work and personal lives by adjusting rather than traveling to a consular section to process their visa. Denials can be appealed; counsel has many tools to deploy to ensure the client gets a fair hearing.

However, there are situations where consular processing can be the better option, both for employment-based and family-based adjustment applicants.   For instance, if the individual originally obtained a work-authorizing nonimmigrant visa from a consular post and later becomes the beneficiary of a related immigrant visa petition, the original issuing post may have access to information about the applicant and his or her professional background before traveling to the US that can make for a more straightforward adjudication. Similarly, someone whose past interactions with U.S. consular officials are well known and documented may not have to spend as much time explaining or clarifying his or her circumstances before a consular officer as would be the case before an immigration officer.

An immigrant applicant who applies to adjust status relatively soon after entering the U.S. may find run into problems if the consular records show that his stated purpose for requesting an NIV and period of intended stay are inconsistent with his or her actions after entering the U.S. It may seem counterintuitive, but applicants who return to the consular post that issued their last NIV to consular process may have an easier time explaining their actions to an IV officer than would be the case with an immigration officer, who will only have access to the computer records and will lack knowledge of the individual’s home country or family circumstances. This is particularly important when the applicant is on record as having asked for a very specific and limited stay in the U.S.

Another group of IV applicants who would benefit from consular processing over adjustment of status are those who previously acknowledged their status as the beneficiaries of pending immigrant petitions in connection with an application for a visitor’s or business visa. Consuls will issue temporary visas to persons who are waiting to immigrate if they believe that the individual does not plan to use their visa to gain entry for the purpose of adjustment. Someone who received a nonimmigrant visa under those circumstances runs a real risk of being found to have misrepresented his or her intentions when they go before CIS to adjust status. Returning to consular process would serve two goals—it would greatly reduce the likelihood of a 6( C ) misrepresentation finding imposed by CIS, and would reinforce the applicant’s credibility before the IV Unit officer who handles the consular adjudication.

With both consular officers and immigration officers more closely scrutinizing all applicants for immigration benefits, it makes sense to follow a strategy that minimizes the risk of denial, even if it requires the client to travel outside the US to consular process. Careful review of all the circumstances a client brings to the process can clarify when that means consular processing rather than adjustment.

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