Consular processing
Consular Processing by John Messing, Immigration Attorney
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In General

Two methods exist for obtaining immigrant visas. The visas entitle persons to live and work indefinitely in the United States. One way is by consular processing. The other is adjustment of status. The first, consular processing, requires persons to obtain the visa from a U.S. diplomatic facility located outside of the United States, most often in the home country of the intending immigrant.

Consular processing falls administratively under the United States Department of State (DOS), unlike adjustment of status, which is the responsibility of the United States Department of Homeland Security (DHS), United States Citizenship and Immigration Services (USCIS).

More than one US agency typically is involved in consular processing cases. USCIS decides whether to approve both family based petitions from qualified family members, employment based petitions from authorized managers of qualified employer companies, and investment petitions in investor cases under EB-5. In family based immigration, USCIS is the first agency involved in the process. In employment based immigration, it is the second. The United States Department of Labor decides initially whether to certify a job offer as appropriately crafted to be qualified as one suitable for the issuance of an immigrant visa. Then and only then can USCIS decide whether an intending immigrant employee is qualified to fill it.

If USCIS approves the application for an immigrant visa, whether family, employment sponsored, or EB-5 (investment), it issues an I-797 Notice of Action. In consular processing cases, it also sends a copy of the I-797 to the State Department's National Visa Center (NVC), for further processing. The National Visa Center collects an immigrant visa fee and in applicable cases, an affidavit of support fee. Upon receipt of the billed fees, the National Visa Center pre-processes documents and information on behalf of the local consulate that will decide whether to issue an immigrant visa. At the conclusion of its processing tasks, the National Visa Center arranges for an interview of the intending immigrant at the consulate in the home country. The intending immigrant must arrange at his or her own expense to travel and be present at the appointment, with originals and copies of the documents that the National Visa Center has specified must be presented. Interview logistics differ between consulates. Consult the local website of the consulate for local rules. Many consulates do not allow lawyers to accompany the intending immigrant, who is interviewed without the benefit of counsel. Because intending immigrants may feel vulnerable and threatened, it is very important to prepare him/her so that s/he can know what to expect and how to respond appropriately. Unfortunately, distance and time-zone considerations dissuade many law firms from this vital task.

At Messing Law Offices, we appreciate the need and value of preparing the intending immigrant for the challenges of consular interviews. Using modern technology forms, documents, their organization for presentation, and interview techniques are reviewed and effected regardless of geographical distance. This sets Messing Law Offices apart from many other immigration lawyers. Contact Messing Law Offices for further information if you are want to explore consular processing as an option.

If the consulate approves the immigrant visa, the intending immigrant is informed of the approval and given a sealed package to present at the border. At entry, the package is unsealed and reviewed. A payment of $165 through the USCIS website is now also required as a final step in the consular process. Normally, a visa stamp evidencing permanent residency for a brief period is entered into the passport of the intending immigrant. Until a permanent resident card is received in the mail at the immigrant's address of record, the stamp is evidence of permanent resident status.

Governmental forms for applying as a family or business sponsor are publicly available at the USCIS website. The DOS website has additional forms specific to consular processing. Apart from attorney email inquiries, the National Visa Center generally sends only hard copy responses by postal mail, with customized instructions specific to the case.

An intending immigrant has considerable, but not absolute, ability to choose between consular processing and adjustment of status.

Loss of Status

An important issues arises for those intending immigrants who have fallen out-of-status or who have previously spent time out-of-status in the United States. Except for immediate relatives of U.S. citizens who are beneficiaries of family based petitions, others who are eligible as grandfathered for purposes of Section 245(i) amnesty, and certain special immigrants, persons who have fallen out-of-status while over the age of 18 are precluded from adjustment of status and have only the remaining option of going abroad for consular processing in order to obtain an immigrant visa and permanent residency.

A hidden danger is that if the period out of status has lasted longer than 180 days, an intending immigrant who leaves the United States to go for consular processing will be barred from re-entry for a specified time. The bar remains in effect for 3 years if the out-of-status period lasted between six months and a year, and 10 years if the out-of-status period has already exceeded a year. Therefore, even if the intending immigrant who was out-of-status is otherwise eligible for consular processing, the bar to re-entry will prevent the issuance of an immigrant visa at the consulate, leaving the intending immigrant without a legal way to return to the United States for the period of the bar.

Starting March 4, 2013, persons living in the United States who have overstayed visas will be able to seek a provisional waiver which will enable them to be pre-approved for return to the US before leaving the country for consular processing abroad. Learn more about provisional waivers.

It is extremely important for an intending immigrant who has worked without employment authorization or overstayed a visa to check with a qualified immigration attorney before taking action to obtain an immigrant visa. If you are concerned about out-of-status issues, or whether a family member or business associate may be in-status and the impact on his, her or their ability to obtain an immigrant visa, please feel free to contact Messing Law Offices for a free seven minute telephonic consultation or to schedule an initial consultation.

Logistical Concerns: Costs and Processing Times to Visa Issuance

Consular processing overall costs slightly less in terms of fees payable to the U.S. Government than adjustment of status. Because petitions for consular processing are routed through the National Visa Center and then to the consular offices abroad, distance and additional layers of Governmental processing are involved in consular process, which makes processing times generally longer (almost three times as long in 2015) for consular processing than for adjustment of status.

Call Messing Law Offices, 520-512-5432 for a free telephonic preliminary evaluation or to schedule an initial consultation.

Immediately Available Visa

An immigrant visa must be immediately available to the alien before a consular interview will be scheduled. The Department of State Visa Bulletin is updated monthly and shows the priority date for each immigrant preference category for that month. Qualified immediate relatives of U.S. citizens, including certain statutorily protected minor children who reached the age of 21 ("aged out") during the visa processing period, always automatically have a visa available to them without reference to the immigrant categories of the Visa Bulletin. Others must wait until a visa becomes current in their immigrant category before the immigrant visa can be granted. In the interim, the intending immigrant must wait outside the United States, usually in the home country. The National Visa Center keeps track of visa availability and generally will timely schedule a consular appointment when it determines that a visa is available to the intending immigrant under Visa Bulletin criteria. Sometimes mistakes are made and it is important to track the visa availability independently. At Messing Law Offices, we assume responsibility to track visa availability on behalf of clients.

For other considerations in choosing consular processing or adjustment of status, please visit our webpage on adjustment of status or contact Messing Law Offices, (520) 512-5432, for a free telephonic preliminary evaluation or to schedule an initial consultation.

Some Pointers of Consular Processing
Affidavit of Support

In most family based petitions and where a family member has 5% or more of ownership control in an employment setting, an affidavit of support must be filed, in which a qualifying sponsor promises support of the intending immigrant and repayment to the Government of specific types of welfare entitlements until citizenship is attained or 40 quarters of social security wages has been earned by the intending immigrant. Read more about affidavits of support . . .

Medical Examination

Prior to attending a consular appointment, the intending immigrant will be expected to make and attend a medical examination at his/her own expense at a facility in the host country that has been qualified to do examinations by the local consulate. Information about the medical examination usually will be provided in the letter setting the consular appointment date and time that the National Visa Center distributues. Records of medical health issues and of prior vaccinations can be very helpful in expediting the medical examinations. Recently, HIV has been removed as a medical condition that may bar admissibility to the United States. Tuberculosis is a condition that commonly may still complicate, delay or prevent issuance of an immigrant visa. Be prepared for additional vaccinations, and to pay extra for them, if the record of vaccinations omits any of those required by the U.S. for entry.

Police Certificates

Unlike adjustment of status, where the FBI does security checks on adjustment applicants from within the United States, intending immigrants utilizing consular processing must provide to the consulate police certificates from the police authority of every country where the intending applicant has resided for six months or more from the age of 16 onwards. These are provided initially to the National Visa Center and then again at the consular processing interview.

Immigrant Visa Consular Processing Compared to Fiancé or K-3 Visas

Sometimes persons planning to marry and apply for permanent residency as the spouse of a U.S. citizen are overwhelmed by the number of visas that seem to be available under different sets of conditions. They wonder which route is best for them, and why.

The answer of course depends greatly on the circumstances in each case, but one helpful generalization may be drawn. A fiancé or K-3 visa is a type of non-immigrant visa. A fiancé visa is good for a single entry made within 6 months of issue, and must lead to marriage within 90 days of entry, or it expires, leaving the fiancé out-status. Marriage must be followed by a timely petition for adjustment of status.

Similarly, a K-3 visa must be followed by a timely entry within the time periods of the visa and adjustment of status in order finally to obtain permanent residency.

The generalization that can be drawn is this: given small differences in processing times between a non-immigrant fiancé or K-3 visa, on the one hand, and an immigrant visa, on the other, an immigrant visa through consular processing is superior, because the immigrant visa is a single, terminal process, while a fiancé or K-3 visa is interim only, and must be followed up with an immigrant visa petition later to remain in-status. The second step adds time and money to the wait and expense of the permanent residency, and further delays eligibility for naturalization.

Processing times of immigrant and non-immigrant visas have not always been equivalent in the past. In previous decades, immigrant visas could take several years to approve, while fiancé and K-3 non-immigrant visas were issued much more quickly. In that era, it made sense to get a non-immigrant visa first and enter the United States as a fiancé or spouse quickly, and then wait for an immigrant visa to issue. In the interim, the wait was within the United States (with employment authorization). With increased processing efficiencies for immigrant visas of recent years, and a rough par in the waiting time for any visa, the advantages of fiancé and K-3 visas have diminished and they are of lesser usefulness as a stopgap measure to enter the United States while waiting for green card approval.

If you want to discuss fiancé, K-3 and immigrant visa considerations, please contact Messing Law Offices (520) 512-5432 for a free brief telephonic evaluation or to schedule an initial consultation.

Conditional Permanent Residency and Naturalization as a U.S. Citizen

Please consult our webpage on adjustment of status (right most tab entitled "Effect") to learn more about these topics.

At Messing Law Offices, we provide high quality legal services and expertise to families, working men and women, and businesses. If you have a concern in the areas of family based immigration, business based immigration, employment based immigration, or naturalization and you are seeking the help of an experienced immigration lawyer, call Messing Law Offices (520) 512-5432 for professional Arizona immigration attorney assistance.