When Must an I-824 Be Filed in a Permanent Residency Case?
Posted Oct 27, 1999

As follow up to the article entitled Adjustment of Status or Consular Processing: Which Should I Choose? which appeared in the September 1999 edition of The Law Office of Sheela Murthy, P.C.s Bulletin, we now discuss some related procedural issues.

In order to ensure that the file is transferred to the correct location, after the approval of the Form I-140: Immigrant Visa Petition for Foreign Worker, it is best to indicate clearly on the I-140 itself, whether the employee will be applying for Adjustment of Status (I-485) in the United States, or whether the employee plans to consular process for an immigrant (permanent) visa at a Consulate abroad.

At one time, INS was indicating that persons who planned to consular process must also enclose Form I-824 with the Form I-140, because if the person was in the U.S., the person was afforded the opportunity to adjust status, even if the person mentioned on Form I-140 that the person intended to consular process. Now the INS no longer follows the rule that the person will adjust status in the U.S. since the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) does not allow certain foreign nationals to adjust status in the U.S. Instead, the choice is simply indicated on the I-140, at the time of filing the Form I-140 with the appropriate INS Service Center.

We recently visited the Vermont Service Center (VSC) on September 29, 1999, where some AILA attorneys, including myself, from the Law Office of Sheela Murthy, had an opportunity to meet with several senior officers of the INS, including the Service Center Director, Paul Novak, Jr. VSC explained that those who had requested consular processing on Form I-140 but whose package was not forwarded to the NVC in New Hampshire could merely call the VSC general information or status line and request the Immigration Information Officer (IIO) to have the file forwarded to the National Visa Center (NVC) in New Hampshire, without filing the I-824 or paying any additional INS filing fees. On the other hand, those who are now changing the request from adjustment of status to consular processing or vice versa, will be required to submit the I-824 with the INS filing fees for the process.

If a person decides to change from one process to the other after filing the Form I-140 with the INS, or after approval of the I-140, or even after filing an I-485, then the I-824 should be filed to notify INS of this changed decision and to request that the file be sent to the NVC for consular processing, instead of being held at INS for processing the I-485. Recently, AILA attorneys at a liaison meeting with INS brought up the issue of the lengthy processing time for an I-824 in many instances. INS officials indicated that they would look into the matter and attempt to shorten the processing times for the I-824. We have already observed some improvement at some of the INS Service Centers. With more and more people preferring consular processing, given the extremely long processing times for I-485s, more people are likely to be filing the Form I-824, so we hope that INS can designate the I-824 as a high priority type of application.

The I-824 is also used for other purposes, for example if a person adjusts status here and wishes immediate family members to be issued immigrant visas abroad in the Following to Join capacity.

Should any of our readers have questions as to adjustment of status and consular processing and need an attorney, please contact The Law Office of Sheela Murthy, P.C. With the continuing delays expected in processing of I-485s, the consular option may be the only viable and more expeditious alternative for many of you.