Liu Yu and Bateman Law Firm

Consular

 1.     Overview

 

Consular processing is the processing and issuance of visas by U.S. embassies or consulates for applicants outside of the United States. Immigration to the United States usually involves several stages of applications through various departments of the U.S. Government:

 

(1)   Foreign labor certification with the U.S. Department of Labor (DOL) – this first stage is required for most employment-based immigration. The sponsoring employer must apply for certification to the DOL and establish the necessity of hiring a foreign worker to permanently fill a vacant job position for which no qualified U.S. worker could be found.

 

(2)   Immigration petition with the U.S. Citizenship & Immigration Service (USCIS) – in this stage, the USCIS adjudicates a beneficiary’s qualification for the particular type of visa applied for. In family-sponsored petitions, this means establishing a bona fide relationship between the petitioner and beneficiary. In employment-based petitions, it means establishing the beneficiary’s qualification for the sought employment category.

(3)   Application for Adjustment of Status or Application for Immigrant Visa

·      Beneficiaries who are already in the United States at the time USCIS approves their petition may stay in the U.S. and file with USCIS an Application for Adjustment of Status to register their permanent residency and obtain a Green Card. 

·     Beneficiaries who are overseas when their petition is approved by USCIS must apply for an immigrant visa with the U.S. Department of State (DOS).

 

The U.S. Department of State is responsible for issuing all visas to foreign nationals in both immigrant and non-immigrant cases. For beneficiaries of approved immigration petitions, the final stage of obtaining an immigrant visa to permanently come to the United States requires the following two sub-steps of processing:

 
1. 
National Visa Center (NVC) – the NVC is an agency within the DOS, and is responsible for charging visa fees, reviewing visa applications, and collecting all biographical documentation from applicants for an immigrant visa.

2.
Consular Processing – after NVC has collected all the necessary information and documentation from an applicant, it will transfer the applicant’s case to a local U.S. Embassy or Consulate in the country of the applicant’s birth or permanent residency. The Consulate will schedule an appointment for the applicant to come for an interview, at which time an officer will review all documents for authenticity and continued immigration eligibility, as well as determine whether the applicant may be barred from entering the U.S. due to any grounds of inadmissibility. Upon successful adjudication of the application, the Consulate with affix an immigrant visa into the applicant’s passport.

 

 

2.     Priority Dates and Visa Availability

 

The Immigration and Nationality Act (INA) specifies the number of immigrant visas that may be issued to foreign nationals seeking to become lawful permanent residents (Green Card) each year. Immigrant visas for the family-sponsored and employment-based immigrant preference categories are numerically limited, so they are not always immediately available.

 

Generally, family-sponsored preference visas are limited to 226,000 visas per year and employment-based preference visas are limited to 140,000 visas per year, though such limits may be exceeded when certain immigrant visas from the previous fiscal year’s allocation were not fully used. Both family-sponsored and employment-based categories are further divided into several sub-categories, each of which receives a certain percentage of the overall visa numbers as prescribed by law. Additionally, there are limits to the percentage of visas that can be allotted each year to nationals of every country.

 

When the demand for visas is higher than the supply of visas for a given year for any given category or country, such category or country is deemed to be “oversubscribed,” and a visa queue (waiting list or backlog) forms, at which time DOS allocates the visas according to prospective immigrants’ priority date. A priority date is usually the date on which the petition on behalf of the immigrant was filed with USCIS. The priority date is used to determine an immigrant’s place in the visa queue. When the priority date is reached, it is deemed to be “current,” and a visa becomes available to the intending immigrant.

 

Not all immigrant visas are subject to annual caps. Immigrant visas for immediate relatives of U.S. citizens are unlimited, so they are always available. Immediate relatives include spouses, parents, and unmarried children under the age of 21.

 

“Chargeability” refers to the country to which an immigrant’s visa is allocated to. Immigrant visas are usually charged to the primary applicant’s country of birth. However, exceptions may be made under the following circumstances:

 

Ø  Married applicants may request chargeability to the country of the birth of their spouse;

 

Ø  Minor children may request chargeability to the country of birth of either accompanying or joining parent (but parents may not use the chargeability of their children); and

 

Ø  Applicants born in the United States are considered to be born in the country of their citizenship.

 

These exceptions of alternate chargeability are very useful in cases where visas for an applicant’s country of birth are backlogged. By requesting chargeability to a spouse’s or child’s country of birth, a family can often save many years of waiting in the visa queue.

 

 

3.     Visa Bulletin

 

DOS maintains a Visa Bulletin, which tracks the immigrant visa queue. The Visa Bulletin, updated on a monthly basis, provides the most recent date for when a visa number is available for the different categories and countries. A visa is available when the priority date is earlier than the cut-off date shown for each preference category and country. If the demand for immigrant visas is less than the supply in a particular category and country, the Visa Bulletin shows that category as “C,” meaning that immigrant visas are current and immediately available to all qualified applicants in that particular preference category and country of chargeability. If the Visa Bulletin shows “U” in any category, this means that immigrant visas are temporarily unavailable to all applicants in that particular preference category and/or country of chargeability.

 

Sometimes the Visa Bulletin may move the cut-off priority dates backward to an earlier date than was shown in the previous month. This is called visa retrogression, which occurs when more people apply for a visa in a particular category than there are visas available for that month. Visa retrogression generally occurs when the annual limit for a category or country runs out or is expected to run out soon. When a new fiscal year begins on October 1st, a new supply of visa numbers becomes available, and may alleviate or eliminate the backlog.

 

In 2015, DOS and USCIS implemented a new, two-tiered system within the Visa Bulletin. The new system maintains two charts of cut-off dates. The “Final Action Dates” chart (also referred to as “Chart A”) displays the eligible cut-off date to receive the immigrant visa in the applicable visa category. The “Dates for Filing” chart (also referred to as “Chart B”) displays the eligible cut-off date to be able to file an application for a visa or for adjustment of status. Filing an application per Chart B will allow an individual to file the relevant forms and supporting documents before their priority date becomes current. In consular processing cases, this can help an applicant save paperwork time when a visa does become available. In adjustment of status cases, filing an application per Chart B allows applicants to lawfully stay and work in the U.S. while they wait for their priority date to become current.

 

 

4.     National Visa Center

 

The National Visa Center usually receives an approved immigration petition file within a month of approval by USCIS. If the petition’s priority date is not current and ineligible for either filing or final action, NVC will generate a case number and merely inform the applicant to wait for further instructions when the priority date becomes current. If it is already current, NVC will send the applicant an invoice for applicable visa fees.

 

All applicants must pay a visa fee, and family-sponsored applicants must also pay an additional Affidavit of Support fee. These two fees are used to fund the processing of two distinct groups of documents. The visa application fee (currently $325 for family-based visas and $345 for employment-based visas), funds the processing of an applicant’s visa application, background verification, and consular interview process. The Affidavit of Support fee (currently $120) funds the unit of NVC responsible for verifying that a family-sponsored petitioner is financially capable of supporting his or her relative beneficiaries. Both fees must be paid by each visa applicant, which may include the primary beneficiary, his or her spouse, and any children.

Upon receiving an NVC invoice, the primary applicant must first verify whether all applicable family members have been included. If any family members need to be added or removed from the list of immigrants accompanying the primary applicant, a formal request must be made to NVC with documentation corroborating each relationship. After the list of immigrating family members has been finalized, the applicant may pay all applicable fees through an online portal.

 

Next, the applicant and his or her accompanying family members must fill out a Form DS-260, Application for Immigrant Visa. This application includes a thorough questionnaire of each family member’s background, including places of residence, family relationships, education and work history, and security questions pertaining to potential U.S. inadmissibility issues.

 

The last step to complete with NVC is to collect and submit all necessary documents in support of each visa application. These are called civil documents, and include the following:

 

Ø  Adoption Documentation: for family-sponsored petitions where the beneficiary child was adopted, documentation is necessary to establish legal and physical custody over the child.

 

Ø  Birth Certificates: each immigrating family member must submit a birth certificate from the proper agency of the country of birth. In family-sponsored petitions for parents or siblings of a U.S. citizen, the petitioner must submit his or her birth certificate as well.

 

Ø  Court and Prison Records: if any applicant was ever convicted of a crime anywhere in the world, he or she must submit each court and prison record.

 

Ø  Marriage Certificate: if any applicant is married at the time of the intended immigration, he or she must submit a marriage certificate.

 

Ø  Marriage Termination Documentation: if any applicant was ever previously married, he or she must submit documentation establishing that every prior marriage was legally terminated. In family-sponsored petitions for a spouse of a U.S. citizen, a petitioner who has ever had a prior marriage must also submit documentation establishing that every such prior marriage was legally terminated.

 

Ø  Military Records: if any applicant ever served in the military of any country, he or she must submit a record of such military service.

 

Ø  Passport Biographic Data Page: each immigrating family member must submit a copy of the biographic data page from his or her currently valid passport.

 

Ø  Police Certificates: Each applicant must obtain and submit a police certificate issued within the past year. A police certificate is a record by appropriate police authorities detailing any arrests and dispositions have ever occurred, or stating that no arrests ever took place. Applicants 16 years of age and older must obtain a police certificate from: (i) their country of nationality and/or country of permanent residence (if they have ever lived in such country for more than 6 months); any other country they have ever lived in for a year or longer; and any other city and/or country in which they have ever been arrested at any age. Applicants that reside or have ever resided in the United States do not need to obtain a U.S. police certificate.

 

In addition to the civil documents, most family-sponsored cases and some employment-based cases require petitioners to submit an Affidavit of Support form and evidence of their income. The Affidavit of Support is a legally binding contract used to establish the petitioner’s ability and obligation to financially support each beneficiary immigrant to a minimal degree required by law. An Affidavit of Support must include the following documents:

 

Ø  Form I-864 / I-864EZ / I-864W: The applicable Affidavit of Support form must be filled out by the petitioner. If the petitioner does not meet the minimum income requirements, a joint-sponsor may be used who must also submit the form.

 

Ø  Proof of Income: Petitioners and joint sponsors must submit a copy of their tax return from the most recent year, as well as disclose their income from the previous two years. If the most recent tax return does not establish sufficient income, additional evidence may be used, such as paystubs or other proof of income.

 

Ø  Proof of Domicile: Petitioners residing abroad must also submit documentary evidence to prove that their foreign residency is of a temporary nature and that they have maintained their domicile in the United States.


After all civil and financial documents have been received by NVC for each immigrating family member, NVC will transfer the case to a U.S. Embassy or Consulate in the applicant’s country of nationality or permanent residence and schedule an appointment for the applicant and his or her accompanying family members to appear at an interview.

 

5.     Consular Interview

 

Prior to attending the interview, the applicant must schedule a medial appointment with an authorized physician in the country where the interview will take place. The purpose of the medical appointment is to undergo a physical examination, receive any necessary vaccinations, and be screened for communicable diseases. Each immigrating family member is required to undergo the examination before the schedule visa interview date. This exam must be with an embassy-approved doctor.  Exams conducted by other physicians will not be accepted. After the exam, the clinic will either send the exam results directly to the U.S. embassy or give the applicant the results in a sealed envelope. Such sealed envelope must not be opened, but must be submitted to the consular officer at the time of the interview.

 

Many U.S. Embassies and Consulates require visa applicants to pre-register for courier services. This service is for returning applicant passports and visas to them after the interview. Each U.S. Embassy and Consulate has unique requirements. Before the interview, the applicant and his or her family members should read the specific requirements online for where they will be interviewed.

 

Every visa applicant must bring the following documents to the interview:

 

Ø  Appointment letter: The consular appointment letter should be brought as evidence of the scheduled interview.

 

Ø  Civil documents: An originals and copy of every civil document submitted to NVC. The copies will be collected at the interview, while the originals will be used to verify authenticity of each document and returned to the applicant.

 

Ø  Eligibility: Employment-based applicants should being verification of their employment-based visa eligibility, such evidence of job offer or investment, as applicable.

 

Ø  Financial documents: Copies of the Affidavit of Support and corroborating financial documents submitted to NVC by the petitioner and any joint sponsors.

 

Ø  Medical exam results: If the medical clinic provided the medical results in a sealed envelope, it should be submitted at the interview.

 

Ø  Passport: Each applicant must bring and submit his or her valid passport.

 

Ø  Photographs: Each applicant must bring and submit two color, identical, passport-style photographs.

 

Ø  Other documents: Applicants should review the interview appointment letter and the Embassy or Consulate unique instructions prior to the interview date for any other documentation that may be required at the interview.

 

On the scheduled date and time of the interview appointment, the applicants should go to the U.S. Embassy or Consulate and a consular officer will interview them, take digital fingerprints, and determine whether or not they are eligible to receive an immigrant visa. Often, a decision is not made immediately but several days later. The Embassy or Consulate may also request additional documents for further verification, particularly in employment-based cases. Since there is no guarantee that a visa will be issued, applicants should not make permanent commitments, such as resigning from a job or purchasing non-refundable travel arrangements, until they have received the immigrant visa.

If a visa is issued, the applicants will also receive a sealed immigration packet, which must be presented to the U.S. Customs and Border Protection (CBP) upon arrival in the United States. Immigrant visas usually have a six-month validity period, during which time the immigrant must enter the United States. Upon entry, immigrants must pay a $220 Immigrant Fee, which funds the production of the Green Card.

 

 

6.     Inadmissibility

 

Pursuant to INA § 212(a), certain classes of individuals are deemed inadmissible, meaning that they are barred from entering the United States. Grounds for inadmissibility include the following:

 

Ø  Health-related grounds: foreign nationals are inadmissible if they are determined to have a communicable disease of public significance, such as but not limited to gonorrhea, leprosy (infectious), syphilis (infectious stage), tuberculosis (active), and any other quarantinable disease designated by Presidential Executive order.

 

Ø  Criminal grounds: foreign nationals are inadmissible if they have been convicted of, or have admitted to having committed, a crime involving moral turpitude (CIMT) or an offense relating to a controlled substance.

 ·        CIMTs generally includes crimes that are inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Examples include, but are not limited to murder, rape, arson, robbery, larceny, theft, and fraud. An exception exists if the crime was a “petty offense” for which the maximum possible sentence did not exceed one year of imprisonment and the actual sentence imposed did not exceed six months. Another exception is made for juveniles who committed the CIMT when they were under the age of 18 and more than five years prior to the date they seek entry to the United States.

·        Any foreign national convicted of two or more crimes, regardless of whether the crimes were CIMTs, are inadmissible if the imposed sentences for all the crimes aggregate to five or more years of imprisonment.

 

·        Other non-CIMT categories of crimes that may render an individual inadmissible include drug trafficking, human trafficking, prostitution, and money laundering.

 

Ø  Security grounds: An individual may be found inadmissible on the following grounds related to U.S. national security:


 
·        Reasonable suspicion of intent to enter the U.S. for the purpose of conducting various unlawful activity;


·       
Terrorist activities or membership or connection with terrorist organizations; or

 

·        Membership with a totalitarian party

 

Ø  Economic grounds: An individual is inadmissible if he or she is deemed to be a “public charge,” which is defined as a person who “by reason of poverty, insanity, disease or disability would become a charge upon the public,” based on an assessment of the following factors: (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills.

 

Ø  Immigration grounds: An individual may be inadmissible if he or she has previously violated U.S. immigration laws or who is suspected of the intent to violate U.S. immigration laws. Such grounds of inadmissibility may arise from the following acts:


 
·        Entry into the U.S. without being admitted or paroled;

·        Unlawful presence in the U.S;

·        Failure to attend removal proceedings;

·        Removal or deportation from the U.S.;

·        Fraud or misrepresentation for immigration benefits;

·        Seeking to enter the U.S. without documentation authorizing such entry; or

·        Smuggling or attempting or aiding to smuggle a foreign national in the U.S.;

 

Ø  Other grounds: An individual may also be found inadmissible on other miscellaneous grounds, such as ineligibility for U.S. citizenship; evading the military draft; unlawfully voting in an election; practicing polygamy; or participating in international child abduction.

 

Individuals falling into any class of inadmissibility will be denied a visa by a U.S. Embassy or Consulate, or will be barred from entry by the CBP, despite having an approved petition. Please be aware that the above list is not exhaustive, but provides a general overview of major inadmissibility grounds as prescribed by law. Intending immigrants who have reason to believe they may be subject to or exempt from any ground of inadmissibility should consult with an attorney.

 

A finding of inadmissibility is not always fatal to an individual’s immigration prospects. The INA authorizes waivers for many, but not all, grounds of inadmissibility. It is not uncommon for an individual to be subject to multiple inadmissibility grounds at the same time. Depending on one’s specific grounds and relevant circumstances, applying for a waiver may require the filing of one or more of the following forms with USCIS:

 

Ø  Form I-601, Application for Waiver of Grounds of Inadmissibility

Ø  Form I-601, Application for Provisional Unlawful Presence Waiver

Ø  Form I-212, Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal

 

The requirements for waivers vary, depending on the specific ground of inadmissibility. However, one common requirement among most waivers is the necessity of the applicant to prove that a qualifying U.S. citizen or permanent resident relative would face an extreme level of hardship in the applicant’s absence.

 

 

7.     Aging Out

 

Visa categories that grant eligibility to an applicant’s dependent children restrict such eligibility to children under 21 years of age. “Aging out” occurs when a child turns 21 years old before receiving his or her visa and is therefore no longer eligible to immigrate along with his or her parent. Sometimes aging out is unavoidable due to long backlogs and retrogression in the visa queue. But other times protecting against a child aging out may be possible, but requires the right strategy.

 

The Child Status Protection Act (CSPA), passed by Congress in 2002, alleviated some age-out issues that exist before due to long processing times by USCIS. Per the CSPA, a child beneficiary’s age is deemed frozen during the pendency of a petition with USCIS. Thus, a child may remain eligible for a derivative visa even if he or she turns 21 while a petition is pending – as long as the petition was filed before their 21st birthday.

 

However, while the CSPA helps to prevent aging out due to USCIS processing times, it does not resolve the risk of aging out while waiting for a priority date to become current. It is nonetheless possible to prevent such aging out if the circumstances allow one or more of the following strategies to be used:

 

Ø  prolonging the pendency of the underlying petition with USCIS;

Ø  Concurrent filing of an Application for  Adjustment of Status;

Ø  Filing of an Application for Adjustment of Status per Chart B of the Visa Bulletin; and/or

Ø  Payment of visa fee and filing of an Application for Immigrant Visa (when applicable).

 

Thus, for the reasons discussed above, prospective immigrants with children close to 21 years of age are urged to seek legal advice regarding protecting their children’s eligibility for derivative visas.

 

 

8.     Consular Processing versus Adjustment of Status

 

Intending immigrants have two distinct paths to obtaining a Green Card after USCIS approval of their petition. Applicants who are overseas need to go through consular processing as described in this article. Applicants who are already in the United States may instead file a Form I-485, Application for Adjustment of Status, with USCIS and remain in the U.S. while the application is pending. However, adjustment of status is not mandatory. Applicants who are in the U.S. may opt for consular processing and travel abroad to attend the immigrant interview.

 

Consular processing has several advantages over adjustment of status. It is generally more efficient and faster. The visa application process overseas requires filling out less forms and paperwork than adjusting with USCIS, and can be much quicker. Consular processing can often be completed in as quickly as 6 months, while family-based adjustment of status averages at 8-10 months and employment-based cases frequently takes longer than 2 years. The governmental fees for consular processing are also cheaper – approximately $565 compared to $1,225 per person for adjustment of status.

 

On the other hand, consular officers have a much wider degree of discretion in their fact-finding and decision-making process, and their decisions are not subject to any review, appeals, or motions to reopen, as is possible with adjustment of status applications that are under the jurisdiction of USCIS. It is also much more difficult to contact a U.S. Embassy or Consulate for case-specific inquiries than USCIS. Moreover, an applicant denied overseas due to a finding of inadmissibility may be unable to enter the United States for a long time, potentially permanently.

 

Thus, many individuals can benefit from faster processing times and lower fees with consular processing. Applicants in the United States are not required to undergo adjustment of status – they may initiate consular processing and take a short trip abroad when a visa interview is scheduled. However, those with a complicated case but who are nonetheless eligible for adjustment of status are better off avoiding consular processing to take advantage of the protections afforded to foreign nationals present in the United States.

 



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