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Health & Fitness

Immigration: Adjustment of Status or Consular Processing?

Juan has his PERM (Labor Certification) approved by the US Department of Labor.  Juan’s employer-sponsor filed the I-140 Petition for Permanent Resident status for Juan and that has also been approved.  Now, Juan is ready to have his permanent resident visa (green card) issued to him. 

 

Of course, Juan wants to have his personal interview for his Adjustment of Status to permanent resident at his local US Citizenship and Immigration Services (USCIS) Office in Hartford, CT.  But, does he qualify to complete the final step in his case at the USCIS Office in Hartford? In order to qualify to file the final step of the employer-sponsor process inside the US, Juan must meet one of the following criteria:

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1                 Must be in lawful status, or

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2                 Must have started some immigration process before April 30, 2001 or have been included in an immigration process filed before April 30, 2001.  (This is called Section 245i eligibility)

 

Juan entered the US in January, 1999 by crossing the border from Mexico into Texas without a visa.  He never started any other process before this employer-sponsor case which was filed in August, 2004.  Juan is not in legal status in the US and he didn’t start any process before April 30, 2001. 

 

Juan was born in Ecuador.  Juan must complete his case at the US Consulate in Guayaquil, Ecuador.   Requiring Juan to complete the last step in his process at the US Consulate in Ecuador is a quasi-punishment for having entered the US without a visa and remained in the US in unlawful status.  He can still obtain his permanent resident status; but he must have his final interview at the US Consulate in his country.

 

Additionally, Juan will need a Waiver in order to return to the US as quickly as possible.  Without the Waiver, Juan will have to remain outside the US for 10 years!  Fortunately, Juan does qualify for the Waiver.  Several years ago Juan’s sister sponsored their parents to come to the US as permanent residents and Juan’s parents are living with him in the US.  Juan supports his parents and helps his mother who suffers from severe epilepsy.  Both of Juan’s parents are “qualifying relatives” for the Unlawful Presence Waiver that Juan needs, and his mother especially qualifies since she would suffer extreme and unusual hardship if Juan had to remain in Ecuador for 10 years. 

 

Juan doesn’t want to risk going back to Ecuador.  Juan is afraid that if he returns to Ecuador, he will never be able to come back to the US.  Most clients who must complete their cases through Consular Processing are afraid.  No one wants to leave the US.  But, this is the current process under our US immigration regulations.  Juan must return to Ecuador, have his fingerprints, medical and personal interview at our US Consulate and be first DENIED.  Only then can Juan file his Unlawful Presence Waiver inside the US with the copy of the Decision of DENIAL from the US Consulate.  Juan waits a few more months in Ecuador while USCIS reviews his Waiver.  When the Waiver is approved, the US Consulate is then notified and they contact Juan so that he can prepare to return to the US.  After Juan returns to the US, his permanent resident visa (green card) will arrive in the mail a few weeks later. 

 

There is no doubt that this process is arduous and convoluted, but it does work.  And, what’s more, this is the only way that Juan can complete his process.  Just think how much money all the airlines are earning from all the applicants who must fly outside the US for their consular interviews?  Just think how much money our government could charge as a penalty for anyone who wanted to pay the penalty and have their personal interview in Hartford?

 

 

 

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