Some foreigners must complete the consular process to emigrate to the United States, after being requested by a family member or an employer. This immigration procedure is nothing more than, visiting a consulate or embassy in the country of origin of the immigrant to complete the application for legal permanent residence to obtain the Green Card.
Consular processing requires sending a series of forms and documents to the respective consulate. In addition to having a medical exam and then attending an interview with an immigration officer. This procedure is basically the second part or the complement of a process already initiated by a petitioner. Depending on the case, direct consular process can be done by the foreigner himself.
What is consular processing?
After a petition presented by a relative of the immigrant, who is a citizen or legal permanent resident, or an employer who has been approved for a labor certification, it is possible to initiate this consular procedure. The other way to request the consular process is after an immigrant has been selected by the diversity visa lottery.
Therefore, if the foreigner is a beneficiary of an already approved immigrant petition and confirms that a visa number is available, there are two fundamental ways to know how to obtain the Green Card and with it, legal permanent residence.
One way is when people are outside the United States and can process an immigrant visa through a consulate abroad to travel to the US. Upon arrival in the country they are admitted as permanent residents. This method is known as consular processing.
The other way is when the immigrant is already in the United States, after having entered with a valid nonimmigrant visa. Without having to return to your home country to do the process, you can, with the help of a good Los Angeles immigration lawyer, request the adjustment of status.
However, there are immigrants who already live in the US and are not eligible to request adjustment of status. In particular, foreigners whose non-immigrant visa has already expired or who entered the country illegally. In these cases they must leave the country and use consular processing.
It should be noted that a tourist visa cannot be used to request the adjustment of status. This could be considered by the administration as visa fraud and would lead to the denial of the permanent residence card.
Consular processing step by step
After speaking with your expert immigration lawyer, you should follow the steps recommended by your lawyer and the Citizenship and Immigration Service (USCIS).
If you need help at this point or any other we are at your service.
1. Make sure you are eligible to emigrate
Determining eligibility to emigrate legally is the most important step where the consular process begins. Remember that to be eligible by a family member or an employer, you must make a request on your behalf. Other people can become permanent residents in the United States through asylum in the US.
2. Submit the immigration petition
The immigration petition is made in several ways that we explain below:
Family-based immigrant petition
To apply for the family-based Green card, a family member (citizen or permanent resident) must endorse it by submitting Form I-130, Petition of Foreign Family Member on behalf of the beneficiary.
Although the Green Card’s request is usually made directly by the beneficiary through USCIS, sometimes depending on the circumstances, it can also be made by the immediate family member (spouse, child or father of a citizen) at the office of USCIS, at the US embassy or consulate in another country.
The law allows it in the following circumstances:
- When the petitioner is a US citizen.
- When there is a USCIS office in the country where the petitioner resides.
- If where the resident petitioner does not have a USCIS office and the “exceptional circumstances” require the petition to be filed locally;
- In certain emergency situations.
- If you are a member of the militia.
- In certain situations related to the safety or health of the petitioner.
- When the national interests of the US so establish.
If you wish to address the issue in more detail, please review our article dedicated to family based immigration.
Employment-based immigrant petition
The application for a Green card based on employment, is processed by the US employer, through the submission of Form I-140, Petition for a Foreign Worker, in the name of the person who intends to hire.
When the immigrant is an investor and wishes to establish a business in the US, he must handle the petition in his own name, by submitting Form I-526, Immigrant Petition by Foreign Entrepreneur.
Special immigrant categories
In other cases, the immigrant can file Form I-360, Petition of Amerasian, Widower, and Special Immigrant, either on their own or through another person.
For almost all humanitarian programs the foreigner is not required to make an immigrant petition. Although it is likely that if you have to meet certain additional requirements to get the Green Card.
3. Wait for USCIS decision
When USCIS makes its decision, it will notify the petitioner. Similarly when they deny it, you will then be notied with the reasons as to why the request was denied. If this happens, you still have the possibility to appeal with the help of one of our immigration lawyers in Los Angeles.
We have been helping Latino immigrants for more than 40 years to obtain the Green Card. Call now to get a Free Consultation at (213) 687-4412.
After the petition is approved and USCIS notifies you of the decision, send that request to the National Visa Center of the State Department (NVC). There it will remain until a visa number is available to you.
4. Wait for notification from the National Visa Center
The NVC will notify the petitioner and the beneficiary (you) once the visa request is received and the visa number is available. This agency is responsible for charging the service fee for visa applications and other supporting documents. So, the NVC will also notify you at what time you should send the corresponding payments to the immigrant visa (fee bills) and other details.
5. Attend the appointment
Upon receiving notification that the visa is available or also that the priority date is in effect, the consular office will send you an appointment for the interview. The processing of the case will be completed by the consular office, which will decide if the beneficiary qualifies to obtain an immigrant visa.
6. Notice of changes to the NVC
Any change of address, change of marital status or attain the age of majority (21 years), must be reported to the National Visa Center. Remember that these changes may affect visa availability or beneficiary eligibility.
7. Obtaining the visa
When the beneficiary receives an immigrant visa, he will receive an information packet from a consular officer, which should not be opened. The person must pay the USCIS Immigrant Fee that entitles him to the processing of the package by this government agency.
Your immigration lawyer will tell you what to do after receiving your Green Card within 45 days. It will also inform you about all the other details of the consular process, interview and documents.
Consular processing with forgiveness – Waivers
Since August 29, 2016, a new rule that allows certain undocumented immigrants (spouses / children of single permanent residents and citizens) to apply for an I-601A waiver to leave the United States was introduced. Thus, they can then carry out the consular process from their home country and then return to the country to obtain a Green card.
Why does an immigrant need immigration forgiveness?
The undocumented immigrant needs this immigration resource to be able to return to the United States without falling under the Law of Punishment, which establishes penalties of 3 to 10 years for illegal immigrants.
I-601-A waiver must be processed before the Office of Citizenship and Immigration Services (USCIS). In order to obtain this pardon, the applicant must demonstrate the “extreme difficulties that their spouses or parents of US citizens or legal permanent residents would suffer if the exemption is not granted”.
In addition, the foreigner must have previously approved a family petition, a job petition or have won the Visa Lottery. The cost of the procedure is $ 120 on the one hand and $ 325 on the other.
One of the benefits of this immigration procedure is that before leaving the US, the immigrant knows if his request for forgiveness was approved or not. This reduces the time the foreigner remains outside the country while the process is being carried out; but it also reduces the risks of not being able to return.
How long does the consular process take?
On average, the consular process for residence may take 6 to 12 months for immediate family members; that is, the spouse and the sons and daughters. Currently, the procedure may take longer. It will also depend on the consulate or embassy where the foreigner carries out the procedure.
However, the waiting time for other family members classified in the different preference categories may be much longer. This is because they have to wait until a visa number is available.
Requirements for the consular process
If it is a consular process for family petition, upon being notified of the approval, the petitioner must send two money orders ($325 and $120) to the US Department of State. After the NVC sends consular package 3, to which the affidavit of support must be attached. You must also send:
- Birth certificates of each of the applicants (the petitioner and the beneficiary). The document must be presented in original and copy.
- Naturalization certificate, birth certificate (if born in the US) or residence card.
- Copy of social security, state identification or driver’s license.
- Immigration court and prison records, if any of the applicants have been convicted of any crime. Or if they have previously benefited from immigration forgiveness, waiver or any other act of clemency.
- Deportation documents. If any of the applicants have been deported or expelled before, they must request permission to re-enter through Form I-212.
- Marriage certificate if you are going to marry your spouse. In the event that either or both of you have been previously married, you will need to attach the divorce or death certificate of the other person.
- For requests between spouses to the request you must attach: Name and address of the companies where you have worked in the last 5 years. Includes dates of entry and exit of each place.
The documents must be sent in original and copy: Birth certificate, marriage / divorce certificate as appropriate, etc.
It should also include:
- Birth certificate if you are going to request the parents.
- Military records.
- Police Certificates.
- Tax copy of the last 3 years.
- Check vouchers for the last 6 months, one per month.
- Proof of original signed and letterhead employment from the company, including all personal information of the petitioner.
- 2 passport-type photos of the beneficiary.
- Copy of the beneficiary’s valid passport (biographical data sheet).
- Certified criminal record of the beneficiary if he is over 18 years old.
- Money order for $ 535 to the Citizenship and Immigration Service (USCIS).
- Birth certificate, passport or valid ID.
- Marriage certificate if married.
- Personal data of parents: Full name, date of birth, place of birth, current address. If they has passed away, include the date of death.
- Personal data of all your children (name, place and date of birth, current address).
- Addresses where you have lived since you were 16 years old (include month and year of each place where you lived).
- Name and address of each place where you have worked for the last 10 years. Includes dates of entry and exit of each place and the professional title or occupation.
- Name and location of the institutions where you studied. Include dates of entry and exit, titles or diplomas obtained. Military service (if applicable) indicating branch, opposition rank, military specialty and dates of service.
- Visits prior to the United States (if applicable). Dates of tickets and the form as income (visa, illegal, etc.)
- Payment of paperwork fees.
Advantages and disadvantages of the consular processing
The consular process in the United States has the advantage of having a much shorter processing time, although some immigrants prefer adjustment of status. On the other hand, with the consular process for residence the risk of rejection is significantly reduced.
Another advantage is that consular officers do not have the discretionary power to deny a visa, while USCIS officers do. It means that to deny a request, the consular officer must justify it through objective and specific evidence. Of course, when the consular process is denied, it is not subject to revision, it is a final decision.
For any case related to an immigration issue for you or a family member, Lluis Law immigration attorneys are at your disposal. We will help you get answer to all your questions. We have over 40 years of experience in representing immigrants in the Los Angeles area. Call now without obligation and book a free consultation where you will talk directly to our lawyers.