- Q: What are the steps for consular processing and what documents will I need?
- Q: What is “aging out” and does it apply to consular processing?
- Q: What will happen during the consular processing interview and what should I bring with me to the appointment?
- Q: How is consular processing different from adjustment of status, and which one should I choose?
- Q: If I am already in the United States on an H-1B but my circumstances are changing, do I have to use consular process? If so, how does that process work?
- Q: What are the pros and cons to choosing consular processing for my immigration petition?
- Q: What do I do if my consular processing application has been denied?
- Q: Am I required to have a medical exam when filing for consular processing? If so, what does the medical exam entail?
- Q: I have a period of unauthorized employment. Will consular processing be of any help to my case?
Q: What are the steps for consular processing and what documents will I need?
A: There are several steps for consular processing. If you indicate your desire to apply for consular processing in you immigration petition, USCIS will forward your approved immigrant petition, which is the I-797 Notice of Action, to the National Visa Center (NVC). If you do not request consular processing in your immigration petition, you will have to file Form I-824 in order to request consular processing. The National Visa Center will then send you a packet when an immigrant visa number becomes available for you. You and your family will need to then complete this packet and return it to the National Visa Center. The National Visa Center will then process your packet that you sent to them. Once this process is complete, the National Visa Center will notify the State Department Visa Office of the completed packet processing and will request allocation of a visa number for you and your family members. After this is done, the Consular Office abroad in your home country will schedule an immigrant visa processing appointment. You must attend this appointment with your family members, which will be located at the nearest United States consulate that issues immigrant visas to you.
Some of the documents and information that you will need when applying for consular processing include:
- You original I-797 approval notice for immigration petition (I-130, I-140, etc.);
- A copy of the immigration petition that you filed;
- The receipt notice for Form I-824 and the approved notice for Form I-824 (only if you did not indicate you was applying for consular processing in the initial immigration petition);
- Evidence that your last residence was in your past host country;
- Consular processing application forms;
- Birth Certificate;
- Medical exam;
- Your employment information for the past 10 years;
- Marriage certificates and military records, if applicable;
- Documentation of the termination of any of your prior marriages, such as a divorce decree or death certificate, if applicable;
- All of your addresses since the age of 16; and
- Police certificates from every country where an applicant has resided for one year since the age of 16. Police certificates must cover the entire period of an applicant’s residence in that area, must have been issued by the appropriate police authority, and must include all arrests, the reason for the arrest(s), and the disposition of each recorded case.
Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.
Q: What is “aging out” and does it apply to consular processing?
A: Aging out arises when a “child” submits an adjustment of status or consular processing application and, during the processing of that application, the “child” turns 21 years old. At this time, that “child” becomes ineligible to become a permanent resident of the United States because he or she has “aged out.”
A “child” is defined, under the U.S. immigration laws, as an unmarried person under the age of 21 who is either a:
- Child born in wedlock (formerly called a legitimate child)
- Step-child, whether legitimate or not, as long as the child was under the age of18 when the step-relationship was created between the child and parent
- Child born out of wedlock where relationship is either with the mother or with the father if, in the case of the father, a bona fide parent-child relationship exists
- Child legally legitimated before the age of 18 if in custody of the father at the time of legitimization
- Children adopted before the age of 16, and having 2 years legal custody and residence with the adopting parent. However, if the family has already adopted a sibling, the second brother or sister who is adopted can be under the age of 18 at time of adoption.
- Certain orphans
The Child Status Protection Act (CSPA), which went into effect on August 6, 2002, changed the circumstances under which a child “ages out” for immigration purposes by working to prevent some children from aging out. The CSPA applies to child beneficiaries of a pending or approved immigration petition that was filed on or after August 6, 2002. The CSPA was enacted by Congress to protect a child’s beneficiary status as a child when there are excessive processing times and backlogs for visa petitions. Keep in mind that, in order to qualify for CSPA protection, the person:
- Must be the beneficiary of a pending or approved visa petition which was submitted on or after August 6, 2002,
- Must not have had a final decision on an adjustment of status application or immigrant visa application before August 6, 2002, and
- Must “seek to acquire” permanent residence within 1 year of a visa becoming available. “Seek to acquire” is defined by USCIS as having a Form I-824< (Application for Action on an Approved Application or Petition) filed on the child’s behalf or the filing of a Form I-485 (Application to Registered Permanent Residence or Adjust Status) or filing Form DS-230 (Application for Immigrant Visa and Alien Registration) with the Department of State.
Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.
Q: What will happen during the consular processing interview and what should I bring with me to the appointment?
A: An interview is required if you choose consular processing of your immigration petition. You will need to ensure that you are available to attend this interview and that you are prepared by gathering the documents you will need to bring and understanding the questions which may be asked. If you cannot attend your interview appointment for some reason, you will need to contact USCIS in order to request a date for rescheduling. If you fail to request a new date and fail to show up to your interview appointment, your consular processing application will be denied.
Before the interview:
You should review all of your paperwork before the interview, including the questions and answers on all the forms and documents that you submitted have submitted so far. You should pay special attention to the dates that your visited or lived in different areas, financial figures, and your immigration history. If you notice any errors or if there have been any changes to your documents, you should be prepared to explain this to the USCIS officer and bring along any documents that confirm the new information, such as a new employment letter and copies of recent pay stubs if your employment has changed.
What to bring:
On the day of your interview, you must bring all of the required documents that are laid out in the instruction package that for immigrant visa applicants and the appointment package for immigrant visa applicants. You should bring your passport with you to the interview as photo identification and so that it can be stamped. Bring along any documents that you have received from the U.S. consular or USCIS. If a tax year has passed since your application submittal, you should bring a copy of your most recent tax return. Keep in mind that, for security reasons, friends, attorneys, relatives, or co-workers are not allowed to attend the interview with you to intervene on your behalf.
During the interview:
Once in your interview, an officer will review your consular processing application and ask you several questions in order to determine whether or not you are eligible for consular processing. If the officer asks you a question that you do not know the answer to or do not remember, say so. Do not lie or try to guess an answer that you are unsure of. Any false statements or concealment of material facts may lead to you being permanently excluded from the United States.
For employment-based immigration interviews, you may be asked questions about your job, including your title, description, daily activities. You may also be asked about your previous entries into the United States, such as the dates, duration, and which visas you were approved for. You will also be required to sign a letter that states that you will work for the same employer after you return.
For marriage-based immigration interviews, you will likely be asked questions about your married life in order for the USCIS officer to determine whether your marriage is bona fide. Questions that the officer may ask you that you should be prepared to answer include:
- When and where did you two meet?
- Why did the two of you decide to get married?
- How many people were in attendance at your wedding?
- What did you do on your most recent night out?
- What did you do for your birthday?
You need to be able to provide documents as evidence of your bona fide marriage, as well. Examples of documents that you could use include:
- Marriage certificate
- Photographs of your wedding, home, vacations, etc.
- Joint bank account information
- Joint utility bills
- Mortgage documents or rental agreements
Keep in mind that, if you have legally separated or have filed for divorce from your partner, you case will likely be rejected and you will not be able to receive consular processing.
Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.
Q: How is consular processing different from adjustment of status, and which one should I choose?
A: Consular processing allows you to possibly avoid the delays in adjustment of status and instead process your application for permanent U.S. residence through the U.S. embassy or consulate in your home country or in another country where you have resided for at least three months. Most of the time, the U.S. embassy or consulate will be able to process your application in less than a year. If you file for adjustment of status, however, you must be residing within the United States.
You must choose between consular processing and adjustment of status. You are not allowed to do both. If you choose consular processing, you give up to the right to obtain an employment authorization document (EAD) while your application is pending with USCIS. Therefore, you likely should not choose consular processing if you have less than 18 months left before your current visa expires, in order to allow time for processing of your application.
It is possible for you to begin with consular processing and then later file an application for adjustment of status. This would mean that you would abandon the consular processing of your case. Keep in mind, however, that USCIS will need to retrieve your application from the U.S. embassy or consulate abroad, which could create a substantial additional delay in the processing of your case. It is also possible to do the opposite scenario, to file for consular processing after you have already filed an application for adjustment of status.
There are some drawbacks in choosing consular processing over adjustment of status, however. Below is a list of some of these drawbacks:
- If your application is denied during consular processing, you have little or no right to have your case reviewed or to appeal. When choosing adjustment of status, however, and your I-485 is denied, you have the right to renew your application in removal proceedings and have several options for review and appeal of your denied case.
- Usually you may also remain in the United States with employment authorization while those proceedings are pending.
- Additional documents and records may be required during consular processing.
- You may be stuck outside the United States if a problem arises in your case until a resolution is reached.
- An interview is required at the U.S. embassy or consulate for consular processing, which usually takes an entire day. For adjustment of status, however, an interview for an employment-based I-485 application is rarely required.
- You cannot apply for a work permit or advance parole if you apply for consular processing.
Q: If I am already in the United States on an H-1B but my circumstances are changing, do I have to use consular process? If so, how does that process work?
A: There are a few reasons why you may need to use consular processing even after you have already entered and worked in the United States on an H-1B visa. Some of these instances include:
- If you are an H-1B worker and you have resigned or have been terminated from your job, but have not spent more than 180 days in unlawful status, then you may be able to acquire a new H-1B visa through a new employer through consular processing.
- If you are an H1-B worker and your visa period has ended, then you may apply for an H1-B extension through consular processing.
- If you are in student status and your employer submitted an H-1B visa petition for you before your current Optional Practical Training (OPT) status has expired but your OPT status is now expired and either the H-1B quota was not open before or at the time of your OPT status expiration or the starting date on the H1-B visa application is not on or before the date of your OPT status expiration, then you will be out of status and you will be required to use consular processing for your H1-B visa petition.
Any time that you do not qualify to change your status within the United States, then you are not eligible to acquire an H1-B visa status while you remain physically present within the United States. In other words, this means that you must go to the foreign consulate of your home country in order to have consular inspection. While at the consulate abroad, then you will be issued a new H1-B visa or visa extension, if you are approved. This new H1-B visa will be under your new employer’s name. You will then be allowed to legally return to the United States and legally work for your petitioning employer.
However, if you satisfy the requirements for an H-1B visa and there are H-1B visa numbers available through the H-1B visa quota, you could potentially change from another visa category to H1-B visa status without the necessity of H-1B consular processing.
Keep in mind, if you remain in the United States after you have already spent time in the United States in unlawful status, you risk being subject to a 3 year or 10 year bar to admissibility into the United States. Also, any future applications for change of status or extensions of stay or for adjustment of status may be denied because of this. The longer you remain in the United States after losing your lawful status, the worse your outcome for future immigration petitions will be. Also, there are many downsides to having to choose consular processing, such as stuck outside the United States if a problem arises in your case until a resolution is reached and being required to produce additional documents and records.
Q: What are the pros and cons to choosing consular processing for my immigration petition?
A: There are several advantages and downsides when choosing consular processing for your immigration case. You should take these into account when choosing consular processing over another option, such as adjustment of status.
Consular processing provides an applicant with several benefits. Some of these include:
- Time: Generally, consular processing will only take approximately six to nine months in most cases, depending on which U.S. consulate you use. This is a much shorter time than adjustment of status, which usually takes around 12-15 months to be approved.
- 180 Day Portability Rule: This rule provides relief to employees who have concerns that future lay offs or reduction in employee numbers by their employers could cause their application for permanent residency to fail. The 180 day portability rule states that those who have I-485 adjustment of status applications pending with USCIS for 180 days or longer are ordinarily eligible to transfer to a new employer without abandoning that I-485 application.
A few of the downsides to choosing consular processing include the following:
- Consulate Notification: There are presently only a few consulates abroad that will accept an application for consular processing without notification from USCIS visa the National Visa Center (NVC). Normally, the process will require USCIS to send notification of the approval of the I-140 to the NVC in New Hampshire and then the NVC will notify the proper consulate abroad. However, several consulates have opted to allow consular processing at their discretion without requiring notification from the NVC.
- Cost: The main additional cost when choosing consular processing over adjustment of status in the United States is the additional travel costs involved in consular processing. You will need to pay for an overseas flight if you choose consular processing, and this may include having to fly any necessary members of the family to the country abroad, as well. If you choose consular processing, you will also have to take into account any time lost from work while you are traveling to the consulate abroad. If any problems arise in your case, it may be required that you stay in the country abroad for longer than originally planned or you may be required to return at a later date.
- Risk: Choosing consular processing involves more risk than choosing adjustment of status. Consular processing requires an in-person interview, which opens you up to being questioned very vigorously and gives you the opportunity to get facts confused or state unfavorable facts and cause delay in your case. Adjustment of status, on the other hand, can more easily be assisted by an attorney and most or all information is given in the prepared application instead of in an in-person interview.
- Employment for Spouses: Unlike with adjustment of status, your spouse will not be eligible to work in the United States while your consular processing application is pending.
- Additional paperwork: Each consulate has its own rules and requirements. Some consulates require additional paperwork that is not necessary when filing and adjustment of status application in the United States. For example, you may be required to provide police certificates for any period that you resided in a foreign country or copies of any and all military records. There are also more stringent requirements for consular processing for exclusion based on medical grounds.
Q: What do I do if my consular processing application has been denied?
A: Consular processing applications where all eligibility requirements are met are rarely denied. Generally, in practice, consular processing applications will be granted when the alien is statutorily eligible and there are no negative factors, such as:
- Fraud in your initial application
- Misrepresentation in your initial application
- Preconceived intent to remain in the United States when coming as a non-immigrant
- Unlawful entry into the United States
- Overstaying the period you were legally allowed to be in the United States
- Criminal background, including any misdemeanors or felonies
- Security related threats, including terrorist activity
- Public charge, including requiring government assistance for financial support or long-term care
- Denial of your underlying visa petition that your application for consular processing is now based on
- Changing jobs after filing your I-140
- Other ineligibility factors, such as health
To ensure that your application for consular processing is not denied, you should be sure to answer all questions on the application form and be sure to include all required documents with your application. You should also attend your consular processing interview and be prepared to answer all questions that may be asked of you accurately and honestly.
Since a medical exam is required for admission as a permanent resident of the United States, these results may be used to deny your consular processing application. If you are determined to have a communicable disease that is dangerous to the public, your application may be denied. Your application may also be denied if you fail to provide the proper documentation showing that you have had all the required vaccinations. In addition, if you are a drug addict or abuser or if you have a physical or mental disorder that could be a threat to yourself of anyone else, your application for consular processing may be denied.
If your consular processing application does happen to be denied, there is no administrative appeal available. This means that you cannot seek direct judicial review of a USCIS decision denying your consular processing application. The only administrative options available to you are to file a motion to reopen or reconsider and to reinitiate the consular processing application. You may also choose to file an adjustment of status application at a later point if you are eligible to legally return to the United States on a valid visa.
Q: Am I required to have a medical exam when filing for consular processing? If so, what does the medical exam entail?
A: Every immigrant visa applicant is required to complete a medical examination with an authorized, government approved physician before the date of his or her scheduled interview. The applicant must schedule and attend this medical exam on his or her own. If you wait to complete your medical exam after you have your visa interview, the processing of your immigrant visa case will be delayed. You will have to wait until the U.S. embassy or consulate abroad has received your medical exam results before your consular processing application can be processed. Thus, it is best if you schedule and attend your medical exam before the date of your visa interview.
You must have your medical exam performed by an authorized, government approved physician. Each U.S. embassy and consulate abroad where you will apply for consular processing can provide you with a list of authorized physicians in your area. A medical exam that is performed by a physician that is not on the list of authorized doctors will not be accepted and your application will be delayed.
The medical exam will include a review of your medical history, a physical examination, a chest x-ray, and blood tests. The physical examination portion will include examination of areas such as your eyes, ears, throat, nose, heart, lungs, extremities, lymph nodes, abdomen, skin, and external genitalia. The physician that you see may give you a printed copy of your results or may send the results of your medical exam directly to the U.S. embassy or consulate.
After you have ensured that the doctor you will see is authorized to perform the medical exam for U.S. immigration visa cases, you should schedule an appointment and then visit the website of your U.S. embassy or consulate abroad and review their instructions related to the required medical examination.
Keep in mind you will also have to provide documentation that you have had all the required vaccinations and you will have to show that you do not have any communicable disease that is dangerous to the public. In addition, if you are a drug addict or abuser or if you have a physical or mental disorder that could be a threat to yourself of anyone else, your application for consular processing may be denied.
Q: I have a period of unauthorized employment. Will consular processing be of any help to my case?
A: Unauthorized employment is a bar to adjustment of status in the United States. If you have worked for any period without proper legal authorization, then you are statutorily barred from adjusting status unless there is an exception that applies in your case. Section 245(c) of the Immigration and Nationality Act (INA) states specifically that adjustment of status in the United States is not available to any alien who accepted unauthorized employment prior to filing an application to adjust status or to any alien who has failed to continuously maintain lawful status since he or she entered into the United States. Therefore, you would not be able to obtain a green card in the United States if you were ever out of status for any period.
However, having a period of unauthorized employment is normally not a problem when you obtain your immigrant visa through a U.S. embassy or consulate outside the United States through consular processing. Effectively, you have already removed yourself from the United States, causing any period of unauthorized employment to be nullified or cured. The consulate applies a different set of laws so there is not a problem with unauthorized employment. In the United States, USCIS has discretion on whether or not to grant adjustment of status and unauthorized employment is a negative factor that works against you. However, U.S. consulates abroad must issue the visa to you unless they find that you are disqualified. USCIS in the United States looks at cases in a different light; they see their job as enforcing the immigration laws of America. The U.S. consulates abroad, on the other hand, simply view their job as issuing visas. Therefore, it is less likely that they will ask or care about any period of unauthorized employment that you may have.
Keep in mind that, no matter what the negative consequence may be to your case, you must answer all questions asked of you truthfully and honestly. You should never lie on a visa application or in a consular processing interview. This could cause your case to be denied or worse if you are considered to have committed material misrepresentation or fraud on the U.S. government. This could cause you to be permanently banned from entry into the United States.
If you have any other bars to inadmissibility, you can request a consular waiver. In certain circumstances, an alien who has been found ineligible for an immigrant visa for any reason listed in the INA may be eligible to apply for a waiver of that ineligibility. At the time of your consular processing interview, the officer will determine whether or not you are eligible for the waiver. If you are found to be waiver eligible, you will be given instructions on how to apply for that waiver. The waiver application and all supporting documents will be reviewed by USCIS, who will make a determination on your application. You will be notified in writing of the decision.