Consular Processing.

Consular processing is the way that individuals who are outside of the United States apply to become Lawful Permanent Residents (LPRs). This is a process that involves the National Visa Center and a U.S. embassy or consulate abroad, and the alternative to consular processing is called adjustment of status. Adjustment of status is the process that is used by individuals who are within the United States when they apply to become U.S. permanent residents. In either case, consular processing and adjustment of status both achieve the same end result, you become a Lawful Permanent Resident (LPR) of the United States.

To begin the process of consular processing, you will first need an approved immigrant petition (i.e. Form I-130 Petition for Alien Relative or Form I-140 Petition for Alien Worker). Once you have an approved immigrant petition, you can then apply for your immigrant visa by completing Form DS-260.

However, even if you have an approved immigrant petition, you will not be able to begin processing your visa through a U.S. embassy or consulate abroad unless an immigrant visa number is immediately available to you as well. If you are in a preference category, this means that your priority date must be current. If you are in an immediate relative category, then a visa number will be available right away, so it will not be a hurdle in your processing.

Consular processing is the proper path to permanent residency when you are not in the United States (but you want to immigration). However, consular processing may be the path you need to take even if you are in the United States. This is true when adjustment of status is not an available or viable option. For example, you might not have a visa number available to adjust, or you might have a record of illegal presence that makes you ineligible for adjustment of status. While there may be some circumstances where you can choose between consular processing and adjustment of status, consular processing is frequently your only legal means of obtaining permanent residency.

Which Inadmissibility Problems Can Still Block Admission After Petition Approval?

Even with a cleared path through an approved petition and an available visa number, the final stage of consular processing, the visa interview, carries substantial risks. Consular officers have broad authority to find that an immigrant is ineligible for admission, regardless of prior petition approval. For immigrants seeking permanent residency, several types of inadmissibility can lead to visa denial and potential bars on reentry to the United States.

Unlawful Presence and Reentry Bars

For individuals who have spent time in the U.S. without legal status, the decision to leave for consular processing can be a high-risk one. This is because leaving the U.S. after accruing “unlawful presence” can trigger either a three-year or a ten-year reentry bar.

In general, if an individual has accrued at least 180 days, but less than one year, of unlawful presence, a three-year bar applies. If they have accrued one year or more of unlawful presence, a ten-year bar applies. In either case, the bar is triggered upon departure, and the individual will typically be unable to return to the United States until the statutory period has passed or, if eligible, they obtain a waiver.

Removal Orders and Other Restrictions

Another issue that can arise during the final visa interview is a prior removal order. If an individual has been ordered removed from the United States in the past, they may need permission to reenter the U.S. before their visa can be issued. This is a separate process from the visa application and, like the reentry bars for unlawful presence, can present significant legal challenges and require additional documentation.

Fraud and Misrepresentation

Regardless of their immigration history, all individuals seeking immigrant visas must be truthful and consistent in all of their dealings with U.S. immigration authorities. Material misrepresentations or fraud, including the submission of fake documents or providing conflicting information during the interview, can lead to a finding of inadmissibility under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act, while a false claim to U.S. citizenship may fall under Section 212(a)(6)(C)(ii). This finding can result in the denial of the visa and a lifetime ban on reentry.

How Does an Approved Petition Move from USCIS to Admission?

Once USCIS approves an immigrant petition, the petition is transferred from USCIS to the National Visa Center (NVC). The NVC handles pre-processing for many U.S. immigrant visa cases before the applicant’s interview at a U.S. embassy or consulate. It acts as a processing center between the initial petition stage and the final interview at a U.S. embassy or consulate. The NVC’s role is to collect all necessary documentation and fees from the applicant, and it then works to determine whether the applicant is eligible to schedule an interview.

The timeline between the petition approval and the interview depends entirely on your visa category. If you are in a preference category, you will need to wait for your priority date to become current. If you are in the immediate relative category, there will be no wait time for a visa number.

What Does an Immigrant Visa Applicant Need to do during the NVC Stage?

If you are an immigrant visa applicant who has a pending consular visa case with the NVC, you will need to complete the following steps:

• Pay the immigrant visa fee;
• Submit Form DS-260, Application for Immigrant Visa; and
• Submit supporting documentation (civil documents).

What Civil Documents Do Immigrants Need to Submit?

The primary purpose of submitting civil documentation during the NVC stage is to show that the applicant is eligible for an immigrant visa. Depending on your specific circumstances, civil documents that you need to submit to the NVC could include:

• Birth certificates
• Adoption decrees
• Marriage certificates
• Divorce decrees
• Police certificates/clearances
• Travel documents/passports
• Financial documentation (regarding your ability to support yourself in the U.S. if necessary)
• Proof of education, employment, or other qualifications (if applicable)

These documents serve multiple purposes. They confirm your identity, your relationship to your petitioner (if applicable), and your good conduct (in the case of police records).

The attorneys at Spodek Law Group carry more than fifty years of combined experience between them.

What Costs and Delays Should Consular-Processing Applicants Budget For?

As we have discussed, the cost and timeline of consular processing vary based on many factors. Applicants for immigrant visas who are going through the process of consular processing should expect to pay several fees, including the government processing fee, the cost of a required medical exam, and potentially other fees for document authentication or translation if necessary. Applicants will also likely have to cover the travel expenses of traveling to the consulate or embassy, as well as their living expenses while in the area.

Similarly, the timeline of the process is not standard and depends on several factors, such as the applicant’s visa category and the specific requirements of the relevant U.S. embassy or consulate. When scheduling their visit to the consulate or embassy and coordinating other logistical needs, applicants should also budget for the possibility of “administrative processing.” According to several competitor pages, administrative processing can last for “weeks or even months,” so applicants will want to make sure they budget accordingly. This additional processing time can be a result of a variety of factors, including the need for a medical exam or other health clearances, security checks, background inquiries, or a question or concern raised during the consular interview.

What Tips Do You Have for Successfully Completing Consular Processing?

If you or a family member are in the process of applying for an immigrant visa through consular processing, the best things you can do to increase your chances of success are:

• Stay informed. Keep informed about the specific requirements of the U.S. embassy or consulate where you will be completing your interview.
• Be truthful and consistent. Ensure all the information you provide to the U.S. Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) is truthful, accurate, and consistent.
• Engage an experienced immigration attorney promptly. Don’t wait until the last minute to bring an immigration attorney on board to guide you through the process.

How Should Applicants Handle Difficult or Confusing Consular Interview Questions?

The immigrant visa interview is generally a mandatory, in-person event that takes place once an immigrant’s visa processing has come to a point where they are eligible for admission to the United States. In order to grant an immigrant visa, the consular officer must ensure that the applicant is eligible for admission under U.S. immigration law. As part of this review, the officer will look at the applicant’s immigration history, criminal background, and any prior visa applications to determine if the applicant is admissible.

During the immigrant visa interview, the consular officer will ask questions regarding the applicant’s family relationships, employment history, travel history, and other relevant aspects of their personal and professional background. The goal of these questions is to verify the information in the visa application and assess any risks that may be involved in granting the applicant an immigrant visa. Consular applicants must be careful when answering these questions, even if the answers to some of the questions seem obvious or redundant, because inconsistencies or misunderstandings can lead to issues that may impede the issuance of the immigrant visa.

Consular interview applicants also need to be sure that they have all required supporting documents ready to present to the consular officer when prompted. If an applicant fails to present a required document, this can result in a delay or the refusal of the immigrant visa. In some cases, the consular officer may determine that the applicant is admissible pending the submission of additional evidence.

Finally, while an immigrant visa interview can sometimes end with a formal decision, it can also end with the visa remaining pending due to “administrative processing.” As discussed above, administrative processing is a form of delayed visa issuance that typically occurs when a consular officer needs additional information or needs to conduct further inquiries before granting the visa. This can include health or security clearances, verification of documentation, and more.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 888 348 8028.