CP and AOS Possible for Different Family Members
Posted Nov 09, 2001

As MurthyBulletin and MurthyDotCom readers are aware, there are assorted, regular liaison meetings between members of the American Immigration Lawyers Association (AILA) and high-level officials of various governmental agencies for the purpose of understanding and negotiating certain policy issues. The governmental agencies generally involved are the INS, the U.S. Department of Labor, and U.S. Department of State.

In a recent meeting between AILA and the INS Nebraska Service Center (NSC), AILA liaison representatives asked NSC officials the following question: “If a person obtained an Immigrant Visa approval for the green card under Consular Processing, could the spouse also obtain approval under CP as a dependent, even though the spouse also had an I-485 Adjustment of Status application pending.” The AILA attorneys were unclear as to whether it would be necessary to withdraw the I-485 for the spouse.

In its response, NSC first stated that it is possible for the dependent family member to adjust status (by filing I-485) even if the principal beneficiary obtained a consular processing approval. In such case, the principal would have to enter the U.S. with the Immigrant Visa, thereby becoming a permanent resident, prior to the family member's I-485 approval.

With respect to the particular question posed, NSC officials indicated that, in order for the dependent to switch from I-485 to Consular Processing, it would be necessary to file a form requesting the change and also to withdraw the I-485. It is INS policy not to allow both the I-485 and the Consular Processing to proceed simultaneously.

We at The Law Office of Sheela Murthy have known of cases in which a person with an I-485 pending has gone for the Consular Processing interview and then withdrawn the I-485 only after returning to the U.S. with an Immigrant Visa. While some people do this successfully, readers should be aware that the official position of INS is to allow only one track or the other. We have commented in prior MurthyBulletin articles that, when a person files the cable request form to initiate a Consular Processing case after filing I-485, INS assumes s/he is wishing to withdraw the I-485.

In January 2001, Steven K. Fischel, Director of the Office of Legislation, Regulations and Advisory Assistance at the Visa Office of the U.S. Department of State (DOS) agreed with a group of us immigration lawyers that the DOS and the INS would consider allowing both tracks simultaneously. We argued that there is no statutory restriction allowing both tracks. The law specifically provides for applicants to opt for one or both options and the principle of contract requires that, if the INS and the DOS take the processing fees for both processes, they should render the services contracted for with respect to each process, rather than considering the I-485 case to be withdrawn and refusing to refund the INS filing fees. Mr. Fischel agreed that he would "look into the matter and discuss it with INS." So far, we do not have any official word of change in INS policy on this issue.

We will keep you posted on this breaking news in the MurthyBulletin and on MurthyDotCom, if there are any developments, since we know that this issue affects many of you.