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Applying to become a lawful permanent resident of the United States from abroad (immigrant visa processing) requires several steps, coordination among different government agencies and, in some cases, will take months to complete. Fortunately, the team at Pelton + Balducci is devoted to helping you successfully navigate the process.
Consular processing of immigrant visas requires that an applicant generally complete a three-part process: first, the filing of a family- or employment-based petition with U.S. Citizenship and Immigration Service (USCIS), second, submission of supporting documents in anticipation of your consular interview to the National Visa Center (NVC), and finally, the applicant’s attendance at a consular interview. Each step will be further explained below.
First, the petitioner or “sponsor” family member files an I-130 immigrant petition for alien relative with USCIS. It is important to note that under immigration law, only certain family relationships qualify to sponsor family members. It is also important to note that, depending on your family relationship, there may be a visa immediately available for the sponsored family member, or the family member’s visa availability may be subject to wait times, due to backlogged visa availability. Please see the Family Immigration section on this site for further explanation of qualifying family relationships.
Once USCIS approves the I-130 immigrant petition for relative, it then transfers the approved petition to the Department of State’s National Visa Center (NVC) to begin filing fee and document collection for the consular interview. At this stage, the NVC requests copies of vital records pertaining to both the petitioner and applicant (or “beneficiary”). The NVC also requests evidence that the petitioner submit an I-864 Affidavit of Support in order to demonstrate that the petitioner is able to financially support the applicant. The petitioner’s household income must be at or above 125% of the poverty guidelines for the petitioner’s household size, in order to qualify. It is important to note that the petitioner must always submit an I-864 Affidavit of Support, even if the petitioner does not qualify; however, the petitioner may also use a Joint Sponsor who does qualify if the petitioner does not satisfy the Affidavit of Support income requirements. Other than meeting the income guidelines, the main requirement for a Joint Sponsor is that the individual is a U.S. citizen or Lawful Permanent Resident with domicile in the United States.
The complete list of the documents required at a particular consular post varies by country and may change over time. For example, some consular posts require police letters confirming any criminal history or the lack thereof, and some posts require military service letters. The U.S. Department of State’s Reciprocity Schedules list the current requirements for each post.
The applicant must also complete the Form DS-260 at this stage, which is the immigrant visa application. The DS-260 requires extensive biographical information about the applicant, including address and employment information. The DS-260 requests information about the applicant’s background, including any police arrest and/or immigration history, as well as information pertaining to any previous travel to the United States. Once all fees are paid and the NVC documentary and form requirements are fulfilled in a case, the NVC then places the case in line for the scheduling of the consular interview.
The consular interview will be scheduled in either the applicant’s country of nationality or country of residence, with few exceptions. The applicant will receive written confirmation of the date and time of the consular interview, as well as instructions regarding additional requirements for the interview.
All applicants are required to undergo a medical examination by a physician designated by the relevant Embassy or Consulate, and this examination is generally scheduled a few days prior to the consular interview. It is very important that any applicant with a medical history have medical records prepared to submit to the consular physician in order to avoid delays in completing the medical examination. Applicants should also present their vaccination records, if available, to the consular medical examiner.
At the consular interview, the applicant will be required to present the original vital records documents, such as birth, marriage and divorce records, copies of which were already submitted to the NVC. The officer will also ask the applicant questions from the DS-260, as the main purpose of the consular interview is to verify the information contained in the application and to ascertain the applicant’s admissibility, or eligibility for the benefit sought. The consular officer will then generally either advise the applicant that the file is complete and ready for adjudication or identify any documentary deficiencies via a Section 221(g) Temporary Refusal Notice. In the latter instance, once the applicant responds to the Section 221(g) Notice with any missing items, then the consular officer will issue a final adjudication.
Consular officer screen all applicants for grounds of inadmissibility, such as previous unlawful presence in the United States, fraud or misrepresentation in prior applications for an immigration benefit, or criminal issues, for example. Probably the most common ground of inadmissibility is for unlawful presence. Unlawful presence accumulates after an individual enters the United States without inspection, from the moment of arrival, or enters lawfully with a visa, but over-stays the period of authorized stay.
If an applicant is residing inside the United States after either entering without authorization or over-staying a non-immigrant visa and subsequently accumulates 6 months or more of unlawful presence, then such an applicant may be eligible for a I-601A unlawful presence waiver. This waiver is available only for applicants who have no other grounds of inadmissibility besides unlawful presence. In other words, an applicant will not be eligible for an I-601A if fraud or criminal grounds of inadmissibility also exist. This waiver does not waive prior removal orders and is generally available to applicants with only one unauthorized entry into the United States. However, there are exceptions to this rule, so please consult with counsel.
In order to prevail in an I-601A waiver, an applicant must show that his or her U.S. citizen or lawful permanent resident spouse or parent will suffer extreme hardship if the waiver is not approved. Thus, it is essential that hardship to the applicant’s family is thoroughly evaluated, developed and documented in the waiver packet by counsel.
The main advantage of the I-601A unlawful presence waiver is that an applicant may submit this waiver to USCIS inside the United States, prior to departing for the consular processing interview. Once the I-601A waiver is approved, then the applicant travels abroad to attend the consular interview, as described above. Because the unlawful presence ground of inadmissibility has already been resolved by the approved I-601A, the consular interview proceeds as described above, without the need to submit an additional waiver at the consular post, despite the finding of unlawful presence inadmissibility.
Upon visa approval, the Consulate will generally ship the applicant’s passport containing the Immigrant Visa to a courier pick-up office pre-selected by the applicant. The typical wait time between visa adjudication date and the passport delivery date is anywhere from a few days to about two weeks. The applicant will find instructions for paying the Immigrant Visa Fee inside the shipment with the passport and visa sent by the Consulate. This Immigrant Visa Fee must be paid prior to the applicant’s travel to the United States, in order to avoid delays in green card delivery.
With Immigrant Visa in hand, the applicant is now ready to travel lawfully to the United States! Please note that inspection by Customs and Border Patrol (CBP) upon this first entry to the United States with an immigrant visa will take several hours to complete, whether inspection is done at an airport or at a land-based port of entry. Thus, any connecting flights within the United States must be scheduled accordingly. The green card should then be delivered to the address indicated on the DS-260 within a few weeks of the applicant’s admission to the United States as a lawful permanent resident.
Q: If I am currently in the United States, should I apply for consular processing abroad or adjustment of status inside the United States?
A: This depends upon your legal eligibility to apply for each benefit, and factors such as your manner of entry into the United States and your immigration history must be evaluated. You should consult with legal counsel, who will advise you which process, if either, is available to you.
Q: When can I expect my consular processing to start?
A: Your process with the NVC will begin once your immigration petition has been approved by the U.S. Citizenship and Immigration Services (USCIS) and a visa number becomes available for your use, if you fall into an immigrant category other than immediate relative of a U.S. citizen. It may take 2 months or more after approval of the petition by USCIS for the case to be transferred to the NVC. Once it is transferred, the first step will be communication from the NVC requesting payment of the Immigrant Visa and Affidavit of Support fee bills, which must be paid prior to submitting documents to the NVC.
Q: Am I allowed to take advantage of certain benefits, like work authorization permits, while my consular processing application is underway?
A: No. Unfortunately, there is no interim benefit of work authorization while consular processing is pending.
If you need legal assistance with navigating the consular processing of immigration visas, with or without a waiver, then please give us a call today at (504) 708-5400. Our team members are well versed in immigration law and cover a variety of practice areas, including but not limited to consular processing immigrant visas and waivers of inadmissibility. You may also schedule a consultation via our confidential contact form.