5/3/2005

There are three categories of people who go for the consular immigrant visa processing:  

(1)    Those who are physically present outside of the U.S. and ineligible for the I-485 adjustment of status to a permanent resident through the USCIS in the U.S.

(2)    Those who are physically present in the U.S. but ineligible for the I-485 adjustment of status not because they are not physically present in the U.S. but because they violated certain immigration laws, most typically overstay or unauthorized employment or entry without inspection, etc.

(3) Those who are physically in the U.S. and eligible for the adjustment of status (I-485) within the U.S. but voluntarily opt for the consular processing as opposed to the I-485 adjustment proceeding.

People in category (1) do not have any other choice unless they make themselves physically available in the U.S. For most of them, the consular processing is more or less mandatory.

People in category (2) are those who violated the immigration laws and ineligible for adjustment of status "but" are "not subject to" to certain provisions of the immigration laws that make them ineligible for immigrant visa.

The following are a few illustrations: Those who overstayed in the U.S. for less than 6 months are eligible for immigrant visa application. On the other hand, those who overstayed 6 months or more are subject to so-called 3-year bar or 10-year bar and not eligible for immigrant visa application. These people should never leave the U.S.

They usually wait in the U.S. until they become eligible for adjustment of status either through Amnesty laws including Temporary Guest Worker proposal or extension of 245(i) relief which allows certain illegal aliens who meet all the requirement under the Section 245(i) of the immigration statute to apply for adjustment of status (I-485) or through the petitions by a U.S. citizen immediate relatives such as a spouse or parents (only minor children) or children (for parents) becoming a U.S. citizen through naturalization or marriage to a U.S. citizen.

These do not exhaust all the relief within the U.S. Certain old timers who have been living in the U.S. illegally since 1972 are eligible for adjustment of status through the "Registry" program. Certain old timers may seek certain relief in immigration court proceedings. Certain people may try to adjust status through the political asylum. Certain illegal children may even become a U.S. citizen when their parent becomes naturalized. 

There may be a number of other present or future relief. For these reasons, the people in this category remain in the U.S. illegally. In fact, they have no other choices because once they leave the country, they will not be able to return to the U.S. for three years or ten years.

 

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