By Steve Qi
With the retrogression making visa available date so disturbingly and
hopelessly remote for nationals from China, India and Philippines, many people
are questioning the conventional wisdom of sitting out the adjustment of
status in the United States. The issue is particularly acute to those Chinese
scholars who have recently received a job offer from China. When there were
sufficient visa numbers available, the answer is quite simple: just wait out
the adjustment of status (AOS, Form I-485) and get the green card, then decide
whether to take the job from China. Now the AOS means almost five years of
long wait, or at least it seems so right now, and people are poking questions
as to whether it’s better to do the consulate processing (CP), under the
mistaken belief that CP could somehow circumvent the visa retrogression.
The reality is far from satisfactory to those under this mistaken belief. The
main purpose of CP for those who forgo adjustment of status is to save time
on getting the visa. The key to CP is that there must be visa available. CP
is not available to those whose visas are not yet current. Under the current
circumstances, a Chinese national would not be able to obtain CP even if he or
she has filed I-485 (those who filed AOS before 9/30/05) since the visa is
not current. Only when the visa becomes current, which probably will be three
to five years later, will the alien able to request CP in home country.
There are several reasons for consulate processing. Chief among them is to
save time on adjustment of status. Historically adjustment of status takes
much longer time, sometimes longer than two years. It wasn’t until about a
year ago that this process has been significantly shortened. It’s not
uncommon for this law firm to see some AOS cases being completed within three
months. When AOS takes about a year or two to complete, it’s worthwhile to
pursue consulate processing by filing an I-824, and then request National Visa
Center (NVC) to notify U.S. consulate in the alien’s home country to issue
permanent residence visa to the alien applicant. That, of course, would
require the alien to go back to his/her home country to apply for visa. The
inherent risk, however, is that if the consul found a ground to deny the visa
issuance, the alien is stuck in his or her home country. He or she may also
have difficulty in applying for non-immigrant visa such as B1/B2 or F-1 due to
the existing immigrant intent.
Another reason for CP is that the alien has no choice when the application had
been filed on his or her behalf by a relative in family based immigration.
Yet another potential reason is that the growing numbers of scholars who have
been offered jobs in home country don’t want to abandon the hard earned I-140
approval and still want to eventually settle in the United States. For those
people, the best option might be to take the job and apply for visa at the
consulate when it become current, be it one year later or five years.
戚博雄律师
美国移民律师协会会员
加州律师公会洛杉矶公会移民及刑事会员
复旦大学世界经济系学士
南加大(USC)硕士
加州西部大学法学院法学博士
加州最高法院出庭律师
联邦法院出庭律师
前新华社记者
博雄联合律师事务所
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