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CIS vs. Consular Processing

CIS vs. Consular Processing

Understanding the Process:

Foreign nationals based overseas can process their immigrant visas at consular posts in their home countries. Individuals who violated their status in any way and are not eligible for adjustment of status under any of the enumerated exemptions must return to their home country for consular processing.

What are the Advantages to Consular Processing?

Unauthorized employment bars adjustment of status.  Section 245(c) of the Immigration and Nationality Act says that adjustment of status in the United States is not available to an alien who “accepts unauthorized employment prior to filing an application for adjustment of status … or who has failed … to maintain continuously a lawful status since entry into the United States …”  This makes you statutorily ineligible for the process of “adjustment”; it means that you are ineligible to obtain your green card in the United States.

But this is not a problem when you obtain your immigrant visa through a consular office outside the United States.  The Consul applies a different set of laws and there is no problem with unauthorized employment when you obtain your visa through consular processing.  Furthermore, the Immigration and Naturalization Service (INS) has the discretion whether or not to grant adjustment of status.  On the other hand, the American consul must issue the visa unless he or she finds that you are disqualified.  This means that if you do not have AIDS or tuberculosis, if you are not a user or abuser of narcotics, or a prostitute or a communist, if you are not a smuggler or a terrorist, and if you have all the right papers then you will obtain the visa.  The consuls see their jobs as issuing visas.  The INS officers see their jobs as enforcing the immigration laws.  Granting of benefits is a low priority to immigration officers.

The biggest advantage of consular processing is timing. Traditionally, immigrant visa processing at a U.S. consulate may save 3 to 18 months depending upon the U.S. consulate and the INS office that would have jurisdiction over the adjustment of status application.

What are the Disadvantages/potential problems to Consular Processing?

No appeals process. One of the major differences between consular processing and adjustment of status is that there is no appeals process if your case is denied by a consular officer.  An appeals process and a process allowing for the reopening of denied and closed cases both exist in the adjustment of status process along with attorney representation in the appeal and in the initial green card interview at the local INS office.

Leaving the U.S. for consular processing could trigger the Three and Ten Year Bars to Re-entering the U.S.   Under the 1996 Immigration Act, individuals who overstayed their nonimmigrant visas by more than 180 days would be barred from reentering the United States for three years. Individuals who overstayed their nonimmigrant visas for more than one year would be barred from reentering the United States for 10 years. There are very limited exceptions for overcoming these bars.

Applying in the US (through CIS – “INS”)

Understanding the Process

If the foreign worker or sponsored family member is within the United States, he or she may apply for adjustment of status by filing an application with the INS in the United States. In the case of a foreign worker, the individual’s priority date, established at the time of filing the initial application for labor certification with DOL, should be current at the time of filing this application. The foreign-born family member must also have a current priority date at the time of filing for adjustment of status.  NOTE:  Except for immediate relative petitions, all other applicants for immigrant visa petitions must have an underlying visa status while the green card (adjustment of status) immigrant visa petition is pending. 

The application can remain pending for several months before CIS issues lawful permanent residence to the foreign national. If the foreign national needs to travel abroad during this time, he or she must seek special travel permission known as “advance parole.” The foreign worker must also have employment authorization while the adjustment application is pending.

Who is Eligible For Adjustment of Status?

Adjustment of status is only available to individuals who have always maintained lawful status in the United States. However, those whose labor certifications or immigrant visa petitions were filed prior to January 14, 1998″ which has now been extended to April 30, 2001″ could adjust their status even if they have violated U.S. immigration laws by not complying with the terms of their nonimmigrant visas. These individuals would have to pay a penalty fee of $1,000. Also, certain employment-based visa applicants could adjust status if they had not been out of nonimmigrant status for more than an aggregate of 180 days, even if the labor certification is filed by April 30, 2001.

What are the Advantages of Adjustment of Status?

Processing your green card case at a consulate requires that you (and your family members if part of your petition) will be required to travel abroad whereas with adjustment of status, there is no international travel but merely travel to your local INS office if you are called for an interview.   There are also more trying documentary requirements for consular processing including a thorough background check, which may delay final processing for months, keeping you in that country until you are cleared by the consul.  In addition, you are required to submit police certificates indicating your criminal background or lack thereof from every place you have lived since the age of 16, regardless of your country of origin or passport-identified country.  Depending on the region, obtaining police reports can be a very timely process, delaying your ability to come back into the U.S. within a short amount of time.  These police certificates are not required in adjustment of status cases.  Your fingerprints are taken and cleared far before the actual interview so, assuming everything else goes well, you will not have to wait beyond the interview date at your local INS office for your green card.

Possible Reasons an Adjustment of Status Case Could Be Denied:

The effect of lying on immigration forms about unauthorized employment. 

“What if I simply don’t mention a short period of employment when I complete the forms?”  you may ask.  In the first place, the forms for adjustment of status specifically ask you to list all of your employment for the past 5 years.  If you deliberately misstate on one of those forms, and the immigration people subsequently find out that you lied, you have three problems.

One problem is that they have 5 years within which to take your green card away and deport you.  Section 246 of the Act says “If, at anytime within five years after the status of a person has been otherwise adjusted under the provisions of section 245 … of this Act or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person if that occurred …”

Another problem is that since you will have lied on the forms, you may be charged with “document fraud”.  Under §274C of the Act, this carries mandatory deportation from the United States.  Section 274C makes it unlawful for a person “knowingly (1) to forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a requirement of this Act.”  And  §241(a)(3)(C) says, “Any alien who is the subject of a final order for violation of section 274C is deportable.” 

And third, to make matters worse, to lie on federal forms in an effort to obtain an immigration benefit is a crime.  Section 1001 of the federal criminal code says that, “Whoever … makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned more than five years, or both.”   Anyone who assists you in doing that (even your lawyer) can also be sentenced to prison.  It is wonderful that there is a second chance available to those who deviate from the rules.  That second chance is made available by “consular processing” a process in which the consul assumes there has been unauthorized employment.  The penalty you are paying is that you must make the visa application abroad but there is no other penalty.

Other possible reasons an adjustment case could be denied, include:

  • Committing certain crimes
  • Polygamy – marrying more than one person at the same time
  • Former, current, or plans of prostitution
  • Drug Trafficking or Possession
  • Membership in Nazi or Communist party
  • Selling trade secrets, working to overthrow US govt, engaging in genocide, or engaging in espionage (spy), or terrorist activity or membership in a group considered by the US govt to be a terrorist organization;
  • Arrests or Admissions to Illegal Conduct
  • Helping another noncitizen enter the country illegally
  • Alcoholism or HIV, or other serious health issue
  • Entering the U.S. Illegally (without being inspected by a CIS officer)
  • Previous deportation or exclusion from the U.S.
  • Working unlawfully
  • Improperl filing or no current visa number available;
  • Using false documents (someone else’s passport/id, etc.)  and more . . .

The above information is general in nature and is not intended to be considered or relied upon as legal advice. You should always consult an attorney to determine if you are eligible to apply for adjustment of status and the benefits and potential hazards in doing so, in your particular case.


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