INS MAINTAINS POSITION THAT CONSULAR PROCESSING CANNOT BE PURSUED SIMULTANEOUSLY WITH ADJUSTMENT OF STATUS

This week the American Immigration Lawyers Association obtained a copy of an INS memorandum in which the agency continues to take the position that filing an I-824 Request for Action on an Approved Application to request consular processing terminates a pending application for adjustment of status. Last year the agency released a memo providing guidance on when using the I-824 is appropriate. This memo said that it should not be used to pursue concurrent adjustment of status and consular processing.

This new memo makes the INS’ position even more clear. The memo notes that it has come to the agency’s attention that people are pursuing such dual processing, but fails to note that it is tremendous INS processing delays that have led people to make such efforts. According to the INS, such dual processing is an inefficient use of INS resources, plus it notes the possibility that it could result in the issuance of two visa numbers for the same alien.

To avoid these perceived problems, the INS will from now on, upon receipt of an I-824 filed to initiate consular processing when the alien has already filed for adjustment of status, notify the attorney and alien that the I-824 will be treated as a request to withdraw the adjustment application. A time for response will be given, during which the alien must decide whether to continue with adjustment of status or pursue consular processing. If the adjustment application is withdrawn, the alien’s employment authorization will be terminated.

The American Immigration Lawyers Association is strongly opposed to this interpretation of INS regulations, and is continuing to work to persuade the INS to change its position.

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