CIS has just announced a new policy for immigrant visas that effectively ends the use of Adjustment of Status (AOS) for the final immigrant interview and final case processing. These steps must now take place at the US Consulate in the home country. This is called Consular Processing or CP.
· Based on past practice by CIS, this new rule applies to pending cases as well as cases that normally would be filed in the future. This, of course, is absurd since many pending AOS cases are very close to approval. Forcing these beneficiaries to completely refile the last step of permanent residency as CP is ridiculous.
· The difficulty with CP is not what most people think. This is an immigrant visa process, not a non-immigrant visas process. When applying for a non-immigrant visa, the consulate has tremendous discretion to do as they please. This is especially true for B-2 and F-1 visas. However, with a CP immigrant case, the Consulate must follow the Department of State’s regulations and its discretion is significantly reduced. In most cases, getting the approval from the Consulate is not the concern; the concern is CIS forcing beneficiaries (and possibly their families) to travel to their interview.
· The new AOS policy will almost certainly be reviewed by multiple Federal Courts. So, whether or not this actually goes into effect remains to be seen. Also, it is likely the Policy will be voided in 3.5 years with a new President.
Finally, the new Policy repeats the claim by CIS that CP and not AOS was the intent of Congress when AOS was created in 1952. These statements are clearly untrue. On the CIS website, the Service repeatedly and clearly explains that CP was created first, but they fail to discuss or even mention that INS actually created the idea of AOS themselves. See USCIS Policy Manual, Chapter 1, Purpose and Background, Vol. 7, AOS, Part B -245(a)-Adjustment. In fact, INS created AOS in the 1930s to help beneficiaries interview in the US and avoid the cost and risk of worldwide travel. It was CIS that created AOS as an alternative to CP; Congress made AOS and CP part of the Immigration and Nationality Act of 1952 (as amended). It is hard to imagine an Immigration Service working to make things easier for immigrants, but that actually happened. A copy of the CIS Policy Manual is below for your review:
Chapter 1 – Purpose and Background
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A. Purpose
Section 245 of the Immigration and Nationality Act (INA) allows certain aliens who are physically present in the United States to adjust status to that of a lawful permanent resident (LPR). Most adjustment applicants file their adjustment of status applications based on INA 245(a).
B. Background
The Immigration Act of 1924 required all intending immigrants to obtain an immigrant visa at a U.S. embassy or consulate abroad[1] (commonly known as “consular processing”). An alien physically present in the United States could not become an LPR without leaving the United States to consular process abroad.
By 1935, immigration authorities had developed an administrative process of “pre-examination” that enabled an alien temporarily in the United States to obtain LPR status more quickly and easily.[2] Pre-examination consisted of an official determination in the United States of the alien’s eligibility for an immigrant visa, the immigrant’s travel to Canada or elsewhere for an arranged immigrant visa appointment at a U.S. consulate, and the immigrant’s prompt return and admission to the United States as a LPR. From 1935 to 1950, the government processed over 45,000 pre-examination cases.[3]
In 1952, Congress made the pre-examination process unnecessary by creating INA 245, which allowed eligible aliens to obtain LPR status through adjustment of status without leaving the United States.[4] Congress indicated that adjustment should be used for purposes of family unity or otherwise be in the public interest.[5]
Over time, Congress revised and consolidated the eligibility requirements for adjustment of status into the current INA 245(a). The bars, restrictions, and special considerations to adjustment are found in INA 245(c) through INA 245(k). Applicable inadmissibility grounds, including public safety and security concerns are found in INA 212.
