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Green Card Journey and Pitfalls of Consular Immigrant Visa Processing

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  • Green Card Journey and Pitfalls of Consular Immigrant Visa Processing

    Update :

    There are three categories of people who go for the consular immigrant visa processing: (1) Those who are physically present outside of the U.S. and ineligible for the 485 adjudstment of status to a permanent resident through the USCIS in the U.S. (2) Those who are physicaly present in the U.S. but ineligible for the 485 adjustment of status not because they are not physically present in the U.S. but because they violated certain immigration laws, most typically overstay or unauthorized employment or entry without inspection, etc. (3) Those who are physically in the U.S. and eligible for the adjustment of status (485) within the U.S. but voluntarily opt for the consular processing as opposed to the I-485 adjustment proceeding.

    People in category (1) do not have any other choice unless they make themselves physically available in the U.S. For most of them, the consular processing is more or less mandatory.

    People in category (2) are those who violated the immigration laws and ineligible for adjustment of status "but" are "not subject to" to certain provisions of the immigration laws that make them ineligible for immigrant visa. The following are a few illustrations:

    Those who overstayed in the U.S. for less than 6 months are eligible for immigrant visa application. On the other hand, those who overstayed 6 months or more are subject to so-called 3-year bar or 10-year bar and not eligible for immigrant visa application. These people should never leave the U.S. They usually wait in the U.S. until they become eligible for adjustment of status either through Amnesty laws including Temporary Guest Worker proposal or extension of 245(i) relief which allows certain illegal aliens who meet all the requirement under the Section 245(i) of the immigration statute to apply for adjustment of status (485) or through the petitions by a U.S. citizen immediate relatives such as a spouse or parents (only minor children) or children (for parents) becoming a U.S. citizen through naturalization or marriage to a U.S. citizen. These do not exhaust all the relief within the U.S. Certain old timers who have been living in the U.S. illegaly since 1972 are eligible for adjustment of status through the "Registry" program. Certain old timers may seek certain relief in immigration court proceedings. Certain people may try to adjust status through the political asylum. Certain illegal children may even become a U.S. citizen when their parent becomes naturalized. There may be a number of other present or future relief. For these reasons, the people in this category remain in the U.S. illegally. In fact, they have no other choices because once they leave the country, they will not be able to return to the U.S. for three years or ten years.

    Those who entered the U.S. without inspection, so-called EWI or border crossers just one time and are not subject to other ineligibility are eligible for immigrant visa application. On the other hand, the repeated illegal entry and the record of removal from the U.S. make them subject to the bar from returning to the U.S. for certain number of years or permanently in worst cases make them ineligible for immigrant visa application. These are the people who do not leave the U.S. waiting for certain future opportunities which are described above, such as Amnesty or Temporary Guest Worker Proposal or Extension of 245(i) or Registry, etc.

    There are many other hidden provisions for ineligibility for the immigrant visa applications under the immigration laws and the people in category(2) should never leave the country unless they first seek legal counsel. For instance, there is one 5-year bar provision which makes certain alien secondary school students who attended a public school over one year without the immigration permission. Sounds ridiculous? These students are ineligible for an immigrant visa at least five years once they leave the U.S. No wonder why some of these illegal "youngsters" are desperately waiting for the passage of the "DREAM Act" which will allow them to adjust status to a permanent resident, more or less amnestry law for the youngster group.

    Departure from the U.S. for the pople in category (2) is a serious matter and unless they are assured by a legal counsel that they are not subject to certain provisions of the immigration laws which make them ineligible for the immigrant or nonimmigrant visa, they should never try to handle their matters in their own hands or rumors in the community.

    People in category (3) are those who are eligible for adjustment of status (485) in the United States, but voluntarily opt for the consular immigrant proceedings in order to take advantage of shorter processing times in the immigrant visa applications as opposed to the heavily backlogged 485 adjustment of status proceedings within the U.S. Obviously, they make such decision based on the self-assurance that they are 100% clean and do not need certain relief which are described above including 245(i) opportunities. Lately, however, there are a number of instances involving such immigrant visa applicants who are trapped under certain pitfalls. The downturn economy keeps laying off the people or even produces bankruptcies or shut-down. Additionally, merger or acquisition has become a matter of life in the business world in this country. In employment-based immigration proceedings, these changes of employers can affect their immigration attempt deadly. Certain merger and acquisition are unable to salvage the approved I-140 immigrant petitions. There are increased transfers of the approved I-140 petitions by the visa posts to the USCIS for revocation of the approved petitions. For those who apply for adjustment of status (485) within the U.S., there is certain relief such as 245(k), 245(i) or most importantly AC-21 180-day rule which allows the alien to change employment for a similar or same occupational classification after 180-day of I-485 application filing. There is no such relief available in the consular immigrant visa proceeding. Once the underlying employment disappears, so does the eligibility for an immigrant visa based on the employment-based I-140 approvals. Additionally, unlike 485 filers, they are ineligible for EAD and Advance Parole which add survivability to the people who experience trauma under the downturn economy. There are a fewer and fewer employers nowadays who offer employment to aliens who do not have a work permit. They are less and less lenient to sponsor a H-1B nonimmigrant visa petition. Since AC-21 180-day does not apply to the consular proceedings, losing the petitioned job results in a deadly consequence in the immigrant visa application.

    The pitfall, however, is not deadly to all the immigrant visa applicants because I-485 application opportunity remains alive inasmuch as they switch from the consular immigrant visa processing to I-485 adjustment of status proceeding before the trauma takes place. Once they lose the job, it is too late. Additionally, AC-21 requires the passage of 180 days from the date of I-485 application and in a number of instances, even switching does not salvage their green card opportunities. Sometimes the strategy of acting smart works and sometimes it doesn't. It is a matter of risk-taking. So is the gambling.

    Democrats Immigration Reform proposal is the key to solve these problems... The immigration system have failed under the Republicans policies, apparently Bush worried about IRAQ more than other national crisis.

  • #2
    Update :

    There are three categories of people who go for the consular immigrant visa processing: (1) Those who are physically present outside of the U.S. and ineligible for the 485 adjudstment of status to a permanent resident through the USCIS in the U.S. (2) Those who are physicaly present in the U.S. but ineligible for the 485 adjustment of status not because they are not physically present in the U.S. but because they violated certain immigration laws, most typically overstay or unauthorized employment or entry without inspection, etc. (3) Those who are physically in the U.S. and eligible for the adjustment of status (485) within the U.S. but voluntarily opt for the consular processing as opposed to the I-485 adjustment proceeding.

    People in category (1) do not have any other choice unless they make themselves physically available in the U.S. For most of them, the consular processing is more or less mandatory.

    People in category (2) are those who violated the immigration laws and ineligible for adjustment of status "but" are "not subject to" to certain provisions of the immigration laws that make them ineligible for immigrant visa. The following are a few illustrations:

    Those who overstayed in the U.S. for less than 6 months are eligible for immigrant visa application. On the other hand, those who overstayed 6 months or more are subject to so-called 3-year bar or 10-year bar and not eligible for immigrant visa application. These people should never leave the U.S. They usually wait in the U.S. until they become eligible for adjustment of status either through Amnesty laws including Temporary Guest Worker proposal or extension of 245(i) relief which allows certain illegal aliens who meet all the requirement under the Section 245(i) of the immigration statute to apply for adjustment of status (485) or through the petitions by a U.S. citizen immediate relatives such as a spouse or parents (only minor children) or children (for parents) becoming a U.S. citizen through naturalization or marriage to a U.S. citizen. These do not exhaust all the relief within the U.S. Certain old timers who have been living in the U.S. illegaly since 1972 are eligible for adjustment of status through the "Registry" program. Certain old timers may seek certain relief in immigration court proceedings. Certain people may try to adjust status through the political asylum. Certain illegal children may even become a U.S. citizen when their parent becomes naturalized. There may be a number of other present or future relief. For these reasons, the people in this category remain in the U.S. illegally. In fact, they have no other choices because once they leave the country, they will not be able to return to the U.S. for three years or ten years.

    Those who entered the U.S. without inspection, so-called EWI or border crossers just one time and are not subject to other ineligibility are eligible for immigrant visa application. On the other hand, the repeated illegal entry and the record of removal from the U.S. make them subject to the bar from returning to the U.S. for certain number of years or permanently in worst cases make them ineligible for immigrant visa application. These are the people who do not leave the U.S. waiting for certain future opportunities which are described above, such as Amnesty or Temporary Guest Worker Proposal or Extension of 245(i) or Registry, etc.

    There are many other hidden provisions for ineligibility for the immigrant visa applications under the immigration laws and the people in category(2) should never leave the country unless they first seek legal counsel. For instance, there is one 5-year bar provision which makes certain alien secondary school students who attended a public school over one year without the immigration permission. Sounds ridiculous? These students are ineligible for an immigrant visa at least five years once they leave the U.S. No wonder why some of these illegal "youngsters" are desperately waiting for the passage of the "DREAM Act" which will allow them to adjust status to a permanent resident, more or less amnestry law for the youngster group.

    Departure from the U.S. for the pople in category (2) is a serious matter and unless they are assured by a legal counsel that they are not subject to certain provisions of the immigration laws which make them ineligible for the immigrant or nonimmigrant visa, they should never try to handle their matters in their own hands or rumors in the community.

    People in category (3) are those who are eligible for adjustment of status (485) in the United States, but voluntarily opt for the consular immigrant proceedings in order to take advantage of shorter processing times in the immigrant visa applications as opposed to the heavily backlogged 485 adjustment of status proceedings within the U.S. Obviously, they make such decision based on the self-assurance that they are 100% clean and do not need certain relief which are described above including 245(i) opportunities. Lately, however, there are a number of instances involving such immigrant visa applicants who are trapped under certain pitfalls. The downturn economy keeps laying off the people or even produces bankruptcies or shut-down. Additionally, merger or acquisition has become a matter of life in the business world in this country. In employment-based immigration proceedings, these changes of employers can affect their immigration attempt deadly. Certain merger and acquisition are unable to salvage the approved I-140 immigrant petitions. There are increased transfers of the approved I-140 petitions by the visa posts to the USCIS for revocation of the approved petitions. For those who apply for adjustment of status (485) within the U.S., there is certain relief such as 245(k), 245(i) or most importantly AC-21 180-day rule which allows the alien to change employment for a similar or same occupational classification after 180-day of I-485 application filing. There is no such relief available in the consular immigrant visa proceeding. Once the underlying employment disappears, so does the eligibility for an immigrant visa based on the employment-based I-140 approvals. Additionally, unlike 485 filers, they are ineligible for EAD and Advance Parole which add survivability to the people who experience trauma under the downturn economy. There are a fewer and fewer employers nowadays who offer employment to aliens who do not have a work permit. They are less and less lenient to sponsor a H-1B nonimmigrant visa petition. Since AC-21 180-day does not apply to the consular proceedings, losing the petitioned job results in a deadly consequence in the immigrant visa application.

    The pitfall, however, is not deadly to all the immigrant visa applicants because I-485 application opportunity remains alive inasmuch as they switch from the consular immigrant visa processing to I-485 adjustment of status proceeding before the trauma takes place. Once they lose the job, it is too late. Additionally, AC-21 requires the passage of 180 days from the date of I-485 application and in a number of instances, even switching does not salvage their green card opportunities. Sometimes the strategy of acting smart works and sometimes it doesn't. It is a matter of risk-taking. So is the gambling.

    Democrats Immigration Reform proposal is the key to solve these problems... The immigration system have failed under the Republicans policies, apparently Bush worried about IRAQ more than other national crisis.

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