Switching between Adjustment of Status and Consular Processing

Switching between Adjustment of Status and Consular Processing

At the time of filing the immigrant petition, the petitioner must indicate if the beneficiary of the petition will adjust status within the United States, a process commonly referred to as Adjustment of Status (AOS) or will apply for an immigrant visa at the U.S. consulate, a process commonly referred to as Consular Processing (CP).

Generally, AOS is a preferred route if the beneficiary is present in the U.S. as the beneficiary can continue to live in the U.S. during this process. Additional benefits of filing AOS include ability to obtain work permit (EAD) while they wait for their AOS application to be adjudicated. While the petitioner is not allowed to select both AOS and CP, if circumstances demand, it is allowed to switch between the two.   

Consular Processing to Adjustment of Status

A transfer from CP to AOS is very straightforward as you just need to file Form I-485 (AOS) along with other ancillary benefits with the USCIS. Once the application for AOS is filed the CP is terminated and the immigrant petition and related documents are transferred from National Visa Center (NVC) to USCIS where they are adjudicated once the priority date becomes current.

Adjustment of Status to Consular Processing

A transfer from AOS to CP is not as straight forward as the other way around. If an immigrant petition was originally marked as AOS and then a decision is made to change it to CP, the petitioner must, upon approval of immigrant petition, first file Form I-824 to notify the change to USCIS. Once USCIS adjudicates the Form I-824, the case is transferred to NVC for it to initiate the CP. Due to long processing time of Form I-824, it is recommended that the form I-824 should be filed as early as possible.


For someone desiring benefit of both CP and AOS, it is generally a better strategy to mark the immigrant petition for CP as it can be converted to AOS at any point of time without any additional costs and delay.

Vaccination Waiver (COVID 19 & others) for Immigration Medical Exam

At the time of filing of the immigrant visa at the US Consulate or an application to adjust status with the US Citizenship & Immigration Status (USCIS), every applicant must include Form I-693, Report of Medical Examination and Vaccination Record, signed by a Panel Physician/Civil Surgeon that documents that the applicant is up to date on all vaccinations designated as mandatory by the USCIS. Under US immigration law, all applicants are required to have received the vaccines against the following disease:

  • Measles
  • Mumps
  • Pertussis
  • Rubella
  • Polio
  • Tetanus and Diphtheria Toxoids
  • Influenza Type B
  • Hepatitis B
  • Meningococcal disease
  • Varicella
  • Pneumococcal disease
  • any other diseases, preventable by vaccine, that are recommended by Advisory Committee for Immunization Practices (ACIP[1])

The vaccine requirement maybe waived if the panel physician/civil surgeon deems a specific vaccine medically inappropriate for the beneficiary or if the vaccine is not age-appropriate, the vaccine is contraindicated, lack of availability of a vaccine, there is insufficient time interval to complete the vaccination services, or similar other reason(s).

There is also a waiver available for individuals who can establish that compliance with the vaccine requirements would be contrary to their Religious Belief or Moral Conviction. This waiver is available only if the individual is opposed to all kinds of vaccination (not just a certain one).

Specifically, to meet the waiver on Religious Belief or Moral Conviction, the individual will need to meet the following requirements:

  1. The individual is opposed to all vaccinations in any form.
  2. The objection is based on religious belief or moral conviction.
  3. The religious belief or moral conviction is sincere.

As generally is the case with all waivers, a waiver of vaccination requirement requires an officer to exercise discretion on a case-by-case basis. A favorable exercise of discretion if generally warranted if the individual meets the requirements outlined above.

Additional information about waivers is available on the Department of State and USCIS websites. If you have specific questions about your case or waivers in general, please schedule a consultation with our office.

[1] ACIP comprises of medical and public health experts who develop recommendations on the use of vaccines in the civilian populations.

USCIS & DHS Takedown Immigration Fraud Scheme Directed at Families

In Florida, federal prosecutors and the United States Attorney Maria Chapa Lopez announced indictment charges for Erika Paola Intriago, of Tampa, Florida. Intriago stands accused of four counts of wire fraud and three counts of wrongfully using government seals. Allegedly, Intriago posed as an immigration attorney through social media, manipulating immigrants and immigrant families from Florida to Illinois. If proven guilty, Intriago could face a penalty of 20 years for each count of wire fraud and up to five years in prison for each count of unauthorized use of governments seals.

Alleged Scheme

According to the indictment released by the Department of Justice (DOJ), Intriago posed as a licensed and qualified immigration attorney, despite holding no license to practice law in the state of Florida or any state for that matter. Intriago operated a business under the name of “EPI Services, INC” that purportedly helped assist individuals and families with all legal immigration matters. Through social media platforms like Facebook, Intriago advertised her services as a qualified legal expert in immigration matters to Hispanic immigrants around Florida. She particularly targeted vulnerable Spanish-speaking families, claiming to be a licensed immigration attorney. Victims of Intriago’s scheme needed assistance with matters before the United States Citizenship and Immigration Service (USCIS) and other agencies and payed Intriago to communicate between immigration agencies and the immigrant families both domestically and abroad. Intriago manipulated many of her victims by promising to secure her clients legal status if the victims payed through cash or money order. Intriago promised to pay USCIS fees directly, and instead pocketed the money without submitted forms or payments to the government. Intriago also stands accused of unauthorized use of government seals as a part of her scheme. Intriago would allegedly “create, copy, and affix seals of government agencies of the United States, including DHS and USCIS, to email messages, letters, and other documents created for and sent to her client-victims as purported proof that she was and had been acting on their behalf in immigration proceedings.” For some victims who had completed paperwork, Intriago either abandoned the immigration paperwork or did not inform her victims about notices of denial. Those victims who complained to Intriago were further victimized as Intriago would threaten to report undocumented clients to the U.S. Immigration and Customs Enforcement (ICE) Agency for deportation.

If you suspect someone is unlawfully posing as a licensed attorney, or you are someone or are aware of someone who is a possible victim please contact 1-866-DHS-2ICE.

USCIS Issues Guidance on Child Marriage: Policy Update

The United States Citizenship and Immigration Services (USCIS) announced new guidance for adjudicating officers processing a Form I-130 spousal petition involving a minor party. Now, those petitions involving a minor party will require an initial interview as a part of the early stages of the Form I-130 adjudication.

Impacted Applications

From April 12th, 2019 on, all Form I-130 spousal petitions with a petitioner or beneficiary under the age of 16 years old will require an interview in the early stages. Those petitioners or beneficiaries seeking a spousal petition aged 16 or 17 will additionally be flagged for an initial interview if there is a 10 year or more age difference between the spouses. While there is no minimum age requirement for a spousal petition in the Immigration and Nationality Act, USCIS notes that the service will now consider these petitions with greater scrutiny given the unfortunate circumstances often surrounding child marriage. In many countries and areas around the United States, marriage is permitted before the age of 18 given specific requirements are met. The new initial interview process will ensure that the circumstances of the marriage were both legal and voluntary.

Circumstances Considered

When adjudicating a spousal petition with at least one minor petitioner or beneficiary, USCIS adjudicating officers will now consider the following:

  • Whether the marriage, at the place of celebration (e.g. country, municipality, etc.), was permissible under the local law;
  • Whether the marriage is valid under the current legislation of the couple’s present or understood state of residence, as filed in their Form I-130;
  • Whether the marriage conflicts with current public policy;
  • And, whether the marriage is legitimate under immigration guidelines.

This backstop will now help to ensure that all Form I-130 petitions are submitted without coercion or abuse of minor parties. In a statement, the Director of USICIS, L. Francis Cissna emphasized the Service’s dedication to additional scrutiny for spousal petitions involving minors, noting that the duty now falls upon Congress to provide “more clarity under the law” for USCIS adjudicating officers. Given the absence of federal law restricting the age of petitioners or beneficiaries seeking spousal immigration benefits, USCIS officers must assess these petitions on a case by case basis.

USCIS does however, have the power to issue a request for evidence (RFE), which largely places the responsibility of proving a bona fide relationship to the petitioners. Regardless, all petitions filed with a minor party are automatically flagged in the electronic system. USCIS then is alerted if a minor spouse or fiancé is involved in a Form I-130 petition. If the birthdate of a spouse was incorrectly filed, petitioners will have the opportunity to correct the mistake.

Marriage Fraud Business Take-Down

In Florida, two people stood before a United States District court for their involvement in a marriage and visa fraud scheme. Ravi Babu Kolla, a foreign national from India and Krystal Cloud, of Altha, Florida conspired together to assist Indian foreign nationals with obtaining immigration benefits through the spousal visa program. Both parties have since pled guilty to charges of conspiracy to commit marriage and visa fraud and conspiracy to commit money laundering. Ms. Cloud, a United States citizen who entered a fraudulent marriage in 2017, faces two years in federal prison while Ravi Babu Kolla awaits sentencing from the acting United States Attorney for the Northern District of Florida, Lawrence Keefe.

Florida Marriage Fraud Scheme

For a period of 18-moths, from winter of 2017 to the summer of 2018, Kolla controlled an immigration fraud business in Bay County, Florida that sought out United States citizens to marry Indian foreign nationals. These clients payed Kolla to obtain US citizen spouses to remain in the United States under a fraudulent visa. According to the Department of Justice, a vast proportion of the foreign nationals had unlawfully extended the period of their prior visa or student visa, and were unlawfully present in the United States. While the recruitment of US citizens took place in Florida, the majority of the fake marriages were performed in the state of Alabama. In total, Kolla and Cloud facilitated over 80 fraudulent marriages.

In assisting with recruitment of US citizens, Cloud, a party in a fraudulent marriage herself, targeted vulnerable citizens in the largely rural areas surrounding Panama City and other nearby areas. In total, she pled guilty to assisting over 10 fraudulent marriages starting in late 2017. Cloud additionally aided in the gathering of personal information from the US citizen spouses, required in Form I-130 petitions. Kolla then created fraudulent immigration forms to allow those Indian foreign nationals who payed for Kolla’s services to live and remain in the United States. A United States citizen, Cloud will see only two years of prison. However, Kolla, who is detained in Florida awaiting sentencing procedures, could face up to 5 years for conspiracy to commit marriage fraud in addition to up to 20 years for money laundering conspiracy.

Trump Administration to Close All International Immigration Field Offices (USCIS)

The director of the United States Citizenship and Immigration Service (USCIS), L. Francis Cissna has reportedly announced the end to the International Division of USCIS. This change would bring about the end of two dozen international branches of USCIS. The end of the USCIS international field office program would occur by the end of 2019, ending 24 programs in 21 countries. The decision to close USCIS international offices around the world comes as an effort to save millions of dollars per year.

Initial Reports

Several reports indicate that USCIS is in the “preliminary” stages of disseminating all USCIS field office responsibility to officials in the US State Department. Therefore, the personnel of the State Department would be responsible for immigration matters previously held by the international USCIS field offices. However, some US embassies and consulates abroad could now hold USCIS type responsibilities. These responsibilities include refugee applications, family reunification visas, foreign adoptions, parole requests, and naturalization documents for military members with foreign national spouses.

A representative for USCIS, Jessica Collins, told NPR that “The goal of any such shift would be to maximize USCIS resources that could then be reallocated, in part, to backlog reduction.” Collins further commented in response to concerns about the sudden closers, stating that the Department of Homeland Security and the US State Department would “ensure no interruption in the provision of immigration services to affected applicants and petitioners.” While the reallocation of resources spent on operations abroad could have a small impact on the backlog domestically, the move likely comes as President Trump works towards slashing government spending to pay for other administrative priorities. These changes will cause longer wait times for those who seek US visa privileges from abroad, and the closures will be especially harmful for refugees.


Along with retransferring basic USCIS responsibilities to already over-worked State Department and embassy staff, the new changes could spell greater delays for refugees seeking residence in the United States. Many are concerned that the added workload will exacerbate an already slow refugee process, in a time when there is the largest refugee population in recorded history.

Evidence of “Good Faith” Marriage: Checklist of Required Documents for Form I-751

A U.S. conditional resident filing for the Petition to Remove Conditions on Residence, Form I-751, must provide information of a “good faith” marriage. The Form I-751 petition, made available to those conditional permanent residents who obtained status through marriage, requires evidence that the marriage was legitimate, and not a means to subvert immigration laws.

Types of Evidence

The documentary evidence portion of the Form I-751 may include several different categories of proof of a legitimate marriage. These include:

  • Residential Evidence:Documentary evidence of a shared home or residence can be helpful in establishing a bona fide marriage. Copies of official deed, lease, or mortgage with both of the spouse’s names can be used as evidence of a financial connection between the married couple. Copies of utility bills showing the same address, property insurance documents with the same address, and driver’s licenses listing the same address are all good examples of a residential connection between the spouses. If the couple does not live together, the petitioners should be prepared to explain the separate residencies.
  • Financial Evidence:Information proving shared monetary resources between spouses may be submitted to prove a marriage is legitimate. In particular, petitioners may file recent jointly filed tax returns, joint checking and savings account statements, and any loan and credit card statements that contain both petitioner’s names. Additionally, proof of a financial relationship may be established by documentation noting large purchases (e.g. houses, cars, etc.). Official legal estate documents, such as a will, can be submitted to provide evidence of path of inheritance for either spouse.
  • Evidence of Relationship: There are many ways that a couple can present evidence of a bona fide marriage. One such way is to provide documents and photographs overviewing the entire relationship. Photographs from the couple’s engagement, wedding, honeymoon, and holidays may be submitted. For photographs, it is important to include an approximate date for each photograph. Additionally, petitioners can include receipts from joint vacations or hotel bookings.
  • Family Evidence: Petitioners may submit any evidence proving shared children. Petitioners can also submit affidavits of family affirming their knowledge of the couple’s relationship. When submitting evidence of children, petitioners should provide copies of original birth certificates displaying both of the parent’s names. Adoption papers should list joint custody of the petitioning parents. Family members, like parents and siblings, may submit official statements, or affidavits of support, for the couple and their relationship.

The documentary evidence above is not an exhaustive list of documents accepted. Consider a variety of evidence of clear evidence when trying to establish a bona fide marriage. 

USCIS Increases Scrutiny for Family Based Applications

In the past few months, the United States Customs and Immigration Service (USCIS) has launched new initiatives to promote greater scrutiny towards several types of immigration applications. Under these new guidelines, Lawful Permanent Residents (LPR) and U.S. Citizens have received an alarming amount of RFEs, or request for evidence, for family-based applications.

Petition for Alien Relative

Once an individual is a LPR or citizen of the United States they may submit a petition for an alien relative to immigrate to the United States, or form I-130. Priority is given to immediate relatives (i.e. spouse, unmarried children, parent). Most frequently, LPRs and U.S. citizens file petitions for their spouse and children. To complete the form I-130, petitioners must establish a bona fide relationship with the relative that they wish to help immigrate to the United States. For years, the documents required to establish a bona fide relationship between spouses has been extensive, yet reasonable. Thus, to file a petition for an alien spouse, petitioners would present a marriage certificate and a few pictures documenting the relationship between the alien spouse and the citizen/LPR spouse. This application would be submitted and processed through a USCIS Lockbox and then referred to a local USCIS office. Later, during the interview process, spouses would be required to provide further evidence of a bona fide relationship (e.g. additional pictures, utility bills, credit card statements, etc.). However, it appears that USCIS now expects more evidence for initial filings than has been typical.

More Evidence, More Roadblocks

In the last several months, applications have been halted at the beginning stages. Several petitioners have received RFEs stating insufficient evidence based on documentation that has, in the past, been sufficient for the initial I-130 filing. These RFEs outline a new extensive list of documents necessary to establish a bona fide relationship including:

  • Courtship correspondence (i.e. texts, email, etc.);
  • Travel Records;
  • Photos;
  • Wedding Announcements;
  • Bank Statements.

In some instances, USCIS has required petitioners to submit notarized statements from members of the beneficiary’s family stating why they were not present at the wedding ceremony.

The volume of RFEs has significantly slowed the immigration benefit process. For family-based petitions, the level of documentation necessary for the first stage of the filing process is atypical and a nuisance for families attempting to reunite in the U.S.

USCIS Introduces Online Fee Calculator

Regardless of the visa application, calculating total fees for filings can be a hassle. But what many don’t realize is that an improperly calculated fee payment would result in rejection of the complete application thereby leading to a longer application process. This tedious process has left many with rejected applications due to citing and submitting the incorrect or incomplete total filing fee. To amend this, USCIS now offers a free Online Fee Calculator to assist those filing their forms through a USCIS agency lockbox facility.

Calculating Fees

From the Immigrant Petition for Aliens Worker (Form I-140) to Applications for Naturalization (Form N-400), applications and petitions for citizenship and immigration benefits require payments to fund processing costs. While a significant sum, these fees enable USCIS to operate as the service almost entirely relies on application and petition fees. Often these fees change to adjust to changing processing costs and inflation. Through the new online calculator, applicants and petitioners can find out the exact filing and biometric fees required for their particular application. The Online Fee Calculator is up to date, and reflects any recent adjustments to fees. The online calculator matches up-to-date filing fees with the forms selected by the drop down menu found on the website. By selecting your form, the fee calculator will either present you with a flat fee rate, or if you filing fee varies, prompt additional information to determine your category or age group. Those who wish to file concurrent forms can multiple form calculations to receive a total filing amount. However, the tool does not currently offer a feature to calculate fees for multiple individuals. Once users have responded to the questionnaire, the Online Fee Calculator will include biometric fees, if necessary, as well as the total fee amount. This total represents the amount that should be filed with applications and petitions submitted to USCIS.

Improper Fees

Each year, USCIS processes millions of applications and petitions. Those which require fees are sometimes submitted with out-of-date and incorrect payments. Those applications are automatically rejected. For those filing at Lockbox facilities, checks, money orders, and credit card payments for applications may include the incorrect fee total. With the new Online Fee Calculator, applicants can rest assured that their fee payment is up-to-date to avoid rejections.

Government Shutdown: EB-5 Program & Immigration Agencies

In the absence of congressional authorization, the EB-5 foreign investors visa program was set to end on December 21st of 2018. However, following the government shutdown that began on December 20th of 2018 and continues into the 2019, the United States Citizenship and Immigration Service (USCIS) announced that the future of the EB-5 program will remain pending until funding legislation passes in Congress. However, the shutdown will not drastically impact other application processes for visa benefits.

Impact on EB-5 Applications Prior to December 21st

USCIS notes that any Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program, will not be accepted as of December 21st. Those Form I-924 applications still pending will remain on hold until funding is either allocated or denied to the EB-5 program. USCIS notes that it will continue to accept regional center-affiliated Form I-526s,  Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status submitted before close of business on December 22nd. However, the aforementioned applications will remain on hold until the end of the government shutdown.

Additional Visas Impacted

As reported during the last government shutdown, most vital functions of the United States government will continue while the government is shutdown. In particular, the US Customs and Border Patrol (CBP) will continue to function at ports of entry. Therefore, foreign nationals need not cancel travel plans abroad during the shutdown. The US Citizenship and Immigration Service (USCIS) will additionally remain open during the shutdown. Thus, any applications or petitions that include fee processing, will continue to be processed through the shutdown (e.g. adjustment of status, etc.). Visa processing services provided by US consulates, and managed by the Department of State, will also continue while the government is shutdown. The Department of Labor, which received funding in September of 2018, will continue Labor Condition Application processing. Although these essential government agencies will remain open during the shutdown, it is unclear when the shutdown will end, and whether programs like the EB-5 visa program, will continue into 2019.