INS Position Since October 2000 on Adjustment and Consular Processing
Posted Oct 30, 2000

Some readers of the MurthyBulletin may have observed that if they had an I-485 (Application for Adjustment of Status) pending and they sent in an I-824 cable request for consular processing, in order to speed up the green card process, the INS has indicated that the I-485 should be withdrawn. This policy has been seen mainly at the Vermont and California Service Centers. It has now come to light that the INS Headquarters issued a memo back on August 8, 2000, requiring such a policy. In light of the changes in U.S. Department of State (DOS) procedures announced in their cable notification of September 20, 2000, described in an earlier issue of the MurthyBulletin, http://www.murthy.com/sep2200.pdf it appears that the INS is taking a position that is inconsistent with that of the Department of State. When such inconsistencies arise, the agencies generally decide jointly on some type of uniform policy.

For now, however, the inconsistencies remain. The INS memo, issued by Michael Cronin, Acting Executive Associate Commissioner, Office of Programs, states that simultaneous processing of adjustment of status and a consular processing request is prohibited. The memo amends the INS Field Manual, which is the guidebook used by the INS adjudicators (the officials who make decisions on INS applications). 

The INS, noting that some people have been filing an I-824 or even a second I-140 petition to request consular processing even though they have a I-485 pending, concludes that concurrent processing is a waste of INS resources. The INS is also concerned about the possibility that more than one visa allocation slot could be awarded to the same person. This concern appears to be misplaced. First of all, the Department of State is in charge of immigrant visa allocation. When the INS approves an I-485, the INS always contacts the Department of State, who in turn counts the person against the appropriate quota and sends a confirmation to the INS.  Now that the Department of State has announced an intention to process immigrant visa cases for persons with pending I-485s, clearly the Department of State does not appear concerned about mistakenly counting the same person twice. Again, the INS memo was published about a month prior to the Department of State cable, so it is likely that the two agencies will resolve their differences.

The INS memo directs adjudicators to treat a Form I-824 cable request as a request to withdraw the I-485. The INS will provide the applicant with the opportunity to inform them how the applicant wishes to process the case.  Employment authorization would also be terminated if the person chooses to pursue consular processing. Similarly, if a person with a pending I-485 files another I-140 that requests consular processing, the INS is to notify the person that the new I-140 will be treated as a withdrawal request for the I-485.

The Law Office of Sheela Murthy will monitor this situation; if a joint INS/DOS policy is developed, we will issue a report in the MurthyBulletin.