ALEJANDRO ROQUE., ESQ. | IMMIGRATION & CRIMINAL LAW ATTORNEY

Consular Processing

What happens during the consular process?

Consular processing refers to the process by which a person seeking to come to the United States visits a U.S. embassy or consulate in his or her home country to complete an application for a green card (lawful permanent residence).

This involves submitting documents to the consulate, undergoing a medical check-up according to the consulate's instructions, and attending an interview there.

Consular processing, on the other hand, could be considered the "second leg" of the green card application process. "Party one" is typically the U.S. citizen or lawful permanent resident relative of the immigrant who files and has an I-130 petition approved by U.S. Citizenship and Immigration Services (USCIS) on behalf of the immigrant. In addition, an employer may generally request the services of certain categories of employees.

U.S. immigration laws provide foreign nationals with several ways to become lawful permanent residents (get a green card) through employment in the U.S. The following employment-based “preference immigrant” (EB) categories include:

• First preference (EB-1) – Priority workers

• Foreigners with extraordinary abilities in the sciences, arts, education, business, or sports
• Outstanding professors and researchers and
• Some executives or managers of a multinational.

• Second preference (EB-2) – aliens who are members of the professions requiring a graduate degree or have exceptional ability (including applications for a national interest waiver).

• Third preference (EB-3) – skilled workers, professionals, and other workers.

Only after an interview with U.S. consular officials and approval of an immigrant visa can a prospective immigrant enter the U.S. and claim lawful permanent resident (LPR) status.

Which immigrants must go through a consular process?

Most immigrants will have little choice but to apply for a green card through a consular process, especially if they are already residing abroad. Individuals are rarely offered the option of entering the United States and completing the application there.

However, many immigrants living in the United States are unable to use the adjustment of status method, particularly those whose visa for permitted stay has expired or who entered the country illegally. They will likely be forced to leave the country and seek consular assistance. Unfortunately, as noted below, this raises concerns for individuals who have been residing illegally in the United States.

Also, please note that you should not enter the United States on a tourist visa in hopes of changing your status. This could be considered visa fraud and your green card could be denied as a result.

The risks of leaving the United States for a consular procedure if you have stayed illegally

For illegal immigrants who have been in the United States for 180 days or more, consular proceedings can result in a bar from returning rather than a green card. They become vulnerable to penalties for their illegal stay if they leave the United States. Even if they meet the requirements for a green card, the consulate is required by law to prevent them from reentering the United States for three years if their illegal stay was between 180 days and one year, or ten years if their illegal stay was one year or more.

Consult an attorney if you find yourself in this situation; a waiver is available through USCIS (on Form I-601A), but it is difficult to obtain.

Consular processing requirements involved in procedures

Your address or other details will have notified the U.S. government of which consulate would be most convenient for you when your family or employer filed your I-130 or I-140 petition, or when you filed your lottery application. After your petition is granted or you win the lottery, your file will be sent to the appropriate consulate by a central agency known as the National Visa Center (NVC).

However, several things must happen before the NVC will transfer your case. First, the NVC will ask you to complete an online Choice of Address and Agent form (DS-261).

At the same time, if you are immigrating through a family member, NVC will send that person a fee for processing the Affidavit of Support (Form I-864). (This is the form your family member must complete and return, promising to help if needed.)

The NVC will send you a charge for the immigrant visa processing fee after receiving your Form DS-261.

What happens next will be determined in part by the embassy where you are questioned. You and the petitioner will need to fill out various paperwork and documentation, as well as undergo a medical exam. However, the methods differ in terms of where you send them once you're done and who listens (either the NVC or the consulate).

Attend a consular interview for an immigrant visa to the United States

The final step in obtaining a visa is to meet with a U.S. consular officer. Your interview date will be sent to you in writing. Once you have sworn to tell the truth, the government will use the interview to verify the content of your application and examine your medical, criminal, and financial records to determine whether you are inadmissible.

If you apply for a green card based on marriage, the consular officer will also ask you personal questions to determine whether your marriage is genuine or a ruse to get the immigrant a green card.

For security reasons, you may not be granted an immigrant visa at the interview. Instead, provided everything goes as planned, you will be asked to return to the embassy to pick up your immigrant visa. There will be a time restriction on when you can enter the U.S. and seek your lawful permanent resident status. The actual green card (also known as Form I-551) will be mailed to you a few weeks later.