i130 -> adjustment of status -> consular processing

[boomboomroom]

Hello,

I have a somewhat confusing case regarding my application and I would greatly appreciate some help.

I am currently a greencard holder. My I130 for my spouse (F1 visa) was approved and I received the letter from NVC.

Since we intended to adjust status in US, I made a call to notify NVC that we wanted to proceed with adjustment of status.

Now that my wife has left the country, I need to change the process back to consular processing.

How do I do that and do I need to pay all the fees e.g. Affidavit of support/Immigrant Visa application fees?

Thanks

 

[Jackolantern]

Did you specify consular processing on the I-130? Was your call to NVC the only action taken towards adjustment of status, or did your spouse actually file the I-485 before leaving?

 

[boomboomroom]

Yes, we specify on question 22 los angeles as the place to adjust status.

She did not apply for 485 before she left because her priority date is not current yet.

And yes, i only made a phone call to notify them about intend to adjust status, no other action taken

 

[Jackolantern]

You picked adjustment of status on the I-130, so that already is official indication of the intent to pursue adjustment of status instead of consular processing. That means once the I-130 is approved, you will have to file I-824 (and pay the fee!) to get NVC to change the case to consular processing.

If you specified a consulate abroad for Q22 of the I-130, it would not be necessary to file I-824 to enable consular processing to happen. That's why on family-based petitions where there is a multi-year wait for the priority date to become current, one should always specify a consulate for question 22 because of the uncertainties of whether the beneficiary will still be in the US when the PD becomes current. If the beneficiary happens to be in the US legally when the PD becomes current, it's easy to switch back to adjustment of status simply by filing I-485. There may be a bit of a delay for the interview as they bring back the case from the consulate, but there would be no extra fee.

 

[boomboomroom]

Thanks Jackolantern for all your help.

We did specify on Q22 consular location in case she is not eligible for adjustment of status

Now that we're switching back to consular processing, should I go ahead and pay for the Affidavit of Support and Immigration Visa Application fees?

You picked adjustment of status on the I-130, so that already is official indication of the intent to pursue adjustment of status instead of consular processing. That means once the I-130 is approved, you will have to file I-824 (and pay the fee!) to get NVC to change the case to consular processing.

If you specified a consulate abroad for Q22 of the I-130, it would not be necessary to file I-824 to enable consular processing to happen. That's why on family-based petitions where there is a multi-year wait for the priority date to become current, one should always specify a consulate for question 22 because of the uncertainties of whether the beneficiary will still be in the US when the PD becomes current. If the beneficiary happens to be in the US legally when the PD becomes current, it's easy to switch back to adjustment of status simply by filing I-485. There may be a bit of a delay for the interview as they bring back the case from the consulate, but there would be no extra fee.

 

[Jackolantern]

We did specify on Q22 consular location in case she is not eligible for adjustment of status

You said you specified Los Angeles for Question 22. That's not a foreign location, so it doesn't count as a request for consular processing, it counts as a request for adjustment of status. And if you specified both Los Angeles and a foreign location, that also doesn't count. You have to choose a US location (for AOS) or a foreign location (for CP), not both.

Now that we're switching back to consular processing, should I go ahead and pay for the Affidavit of Support and Immigration Visa Application fees?

No, those are due when the priority date is current or almost current and the consulate is ready to proceed to the final formalities. Right now you only need to file I-824 (if and when the I-130 is approved).

 

[boomboomroom]

Thanks again for your reply

My wife's I130 was approved on April 21, 2011 and on the approval notice USCIS noted that the original visa petition was sent to NVC and a week later I received letter from NVC regarding the case.

At that time we notify NVC that we would like to proceed with Adjustment of status.

I have an assumption that NVC still has the case/documents and has not forwarded the docs to USCIS because her date is not current yet so I864 won't be required at this point. All I need is to notify NVC that I'd would like to proceed with Consular processing instead.

You said you specified Los Angeles for Question 22. That's not a foreign location, so it doesn't count as a request for consular processing, it counts as a request for adjustment of status. And if you specified both Los Angeles and a foreign location, that also doesn't count. You have to choose a US location (for AOS) or a foreign location (for CP), not both.


No, those are due when the priority date is current or almost current and the consulate is ready to proceed to the final formalities. Right now you only need to file I-824 (if and when the I-130 is approved).

 

[Jackolantern]

I have an assumption that NVC still has the case/documents and has not forwarded the docs to USCIS because her date is not current yet so I864 won't be required at this point.

Correct, I-864 is not needed yet, but I-824 will be needed to change the case to consular processing, because consular processing was not originally selected on the I-130.