Consular processing is one of the most complicated ways of obtaining a green card – and that’s saying something when it comes to U.S. immigration law. The first step is deciding if it’s even the best fit for your situation and only a qualified attorney can really help you determine that.
If you believe that a consular process is right for you, then there’s still the matter of filing the petition and getting through the interview. While it’s not impossible to navigate this on your own, we don’t recommend it.
Our attorneys at Nuñez & Associates are highly qualified to help you determine the best avenue for obtaining your green card – whether it’s through consular processing or other paths. If you’re ready to get started, give us a call and we’ll start devising your plan of action.
Consular Processing Overview
Consular processing is one of two ways that an immigrant can obtain permanent residency or a green card. The other is adjustment of status, available to certain immigrants who are lawfully in the U.S. To use consular processing, you must be a beneficiary of an approved immigrant petition and possess an immigrant visa number. If this applies to you, then you may apply for your visa at the U.S. Embassy or consulate in your home country.
For some immigrants, this may be your only option even if you are in the U.S. If so, you may be required to leave the country to apply at the consulate in your home country as adjustment of status is not available to you in the U.S.
For immigrants who are in the U.S. unlawfully, leaving the U.S. to use consular processing may not be your best option. If you had a visa that expired or were otherwise in the U.S. unlawfully or without legal status for 180 days to one year, you are not permitted to apply for reentry into the U.S. for three years. Beyond that, you may be barred for ten years.
Otherwise, there are some steps for consular processing to obtain your visa and get on the pathway to obtaining your green card.
Most immigrants who are eligible for permanent residency gain that status either through a family member or through employment. Other less common methods of eligibility are asylum or refugee status, VAWA, K-1 nonimmigrant (fiancé), widow(er) of a U.S. citizen, members of the military, and others.
An immigrant petition needs to be filed by someone on your behalf. For family-based petitions, it is Form I-130, Petition for Alien Relative. For employment-based petitions, a U.S.-based employer must file Form I-140, Petition for Alien Worker. If you are an entrepreneur or foreign investor, you can file your own petition with Form I-526, Immigrant Petition by Alien Entrepreneur.
If you are applying abroad and your petition has been approved, the USCIS will notify you and send the petition to the National Visa Center (NVC) where a visa number will be issued once it becomes available. When it does, you will be notified and asked to submit processing fees and information regarding what documentation is necessary.
If your petition is denied, the USCIS notification will advise you of the reasons for denial and your rights to appeal.
When the visa number becomes available, or the priority date is current or earlier than the cut-off date, you will be notified of your visa interview at the consular’s office. The officer will review your application as well as medical records, criminal history and financial records.
If you have a felony conviction or at least two misdemeanor records, you will likely not be admitted. Certain medical conditions may bar approval as well. If these issues refer to you, then you should seek the advice of an immigration attorney before the petition is filed. If you omitted certain material information or were untruthful on your application, you will not be granted a visa unless you can somehow explain the discrepancies.
If your application is based on marriage, the officer will question you and your spouse regarding details of your relationship to determine if it is a sham marriage. If your marriage is less than two years but your visa is approved, you will receive conditional permanent residency status when you enter the U.S., which is valid for two years. Ninety days before the two-year period expires, you must file a petition to remove the conditional status. If you divorced, you have a significant burden of proving that your marriage was not solely to gain U.S. permanent residency status.