Changing to Consular Processing After Form I-485 Has Already Been Filed

If you have applied for Adjustment of Status (“AOS”) on Form I-485 and you need to leave the United States, you can change to the Consular Processing (“CP”) method in order to obtain a visa abroad. In order to change to CP, you must submit Form I-824 to USCIS. Form I-824 is a request that the U.S. Consulate overseas is notified of your AOS approval. Follow the instructions for Form I-824 carefully. If in doubt about submitting this request, you should consult an immigration lawyer.

One reason why an AOS applicant might want to change to CP is because AOS sometimes experiences long delays in processing. CP is sometimes quicker. However, Form I-824 has sometimes experienced long delays as well. Therefore, changing to CP may not turn out to be as quick as you thought.

In employment-based AOS cases, this problem may have less of an effect. The Visa Office recently advised all U.S. Consular posts to accept these types of cases when the beneficiary was last resident in that Consular post’s district. Even when the beneficiary was not last resident in the Consular post’s district, the Consulate is strongly encouraged to accept the cases if the applicant is facing some sort of hardship as a result of the long processing delays.

To change from AOS to CP, the employment-based applicant should submit three primary documents to USCIS: (1) the I-797 Notice of Receipt on the Form I-140; (2) a copy of the Form I-140 petition; and (3) the Notice of Receipt for the Form I-824. In addition, the applicant should submit evidence that she will be residing in the Consular post’s district during the foreseeable future.

There are certain drawbacks, however, to changing from AOS to CP. For instance, if the applicant has accrued over 180 days of unlawful presence in the U.S., she should not change from AOS to CP or else she will be subject to the 3- or 10-year bar to returning to the U.S. Another drawback is that the applicant’s withdrawal of her AOS application may also have the effect of withdrawing her employment authorization if she does not have some other means of obtaining employment authorization, such as another type of nonimmigrant visa status.

If you are in doubt about changing from AOS to CP, you should speak to an immigration lawyer. An immigration lawyer will be able to analyze your case and advise you accordingly.

Source by Brandon Gillin

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