The Immigration and Nationality Act (INA) provides for two primary paths to permanent resident status (a green card). An individual who is the beneficiary of an approved immigrant petition and has an immigrant visa number immediately available may apply at a U.S. Department of State consulate abroad for an immigrant visa in order to come to the United States and be admitted as a permanent resident. This pathway is referred to as “consular processing.”
In the alternative, an individual who is eligible and is already in the U.S. may adjust status to that of a permanent resident without having to return to their home country. This process is referred to as “adjustment of status.” The following comments refer to the steps of “consular processing,” in other words, steps necessary when the immigrating individual is outside of the U.S.
- Filing of the immigrant petition
- Waiting for approval of the immigrant petition and an available visa number
- Processing with the National Visa Center
- Appointment at U.S. consulate and determination
- Entering the U.S.
Steps for Consular Processing
1. Filing of the immigrant petition.
Most individuals become eligible for a green card (permanent residence) through a petition filed on their behalf by a family member or employer in the U.S. Others become permanent residents through first obtaining refugee or asylum status, or through a number of other special provisions or humanitarian programs. In some cases applicants may qualify under more than one category. Proper understating of requirements under U.S. immigration laws, timeframes, and costs involved is necessary to devise a successful strategy. In all cases, it is important to engage in thorough analysis of law and fact to determine a pathway most efficient, timely and most suited to applicant’s objectives.
Once a strategy is in place, a particular immigrant category is selected. In most cases, an immigrant petition will be filed on behalf of the applicant in the U.S. by either a sponsoring family relative or a sponsoring employer. Entrepreneurs who intend to invest significant amounts of capital into a business venture in the U.S. may file an immigrant petition on their own behalf. Foreign Nationals who are able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim (i. e., Nobel Prize, Pulitzer Prize, Oscar, Olympic Medal and/or combination of other factors) may also file an immigrant petition on their own behalf.
Although immigrant petitions are filed in the U.S., in some cases, an immigrant petition may be filed for an immediate relative (spouse, child, or parent of a U.S. citizen) with a U.S. embassy or consulate abroad. In most of these situations the petitioning U.S. spouse is living outside the U.S. and has has been authorized to continuously reside within the jurisdiction of the consular office for at least the previous 6 months, the filing of the immigrant petition to a U.S. consulate abroad may be available to members of the military; in situations involving the health or safety of the petitioner; in emergency situations or in such situations when the filing is in the national interests of the U.S.
2. Waiting for approval of the immigrant petition and an available visa number.
Immigrant petitions in the U.S. are filed with the United States Citizenship and Immigration Services (USCIS), an agency that is a part of the United Stats Department of Homeland Security. Once the petition is filed, USCIS notifies the petitioner of receipt of the petition. In certain cases USCIS may require additional information or evidence related to the benefit thought by the petitioner, it also notifies the petitioner of the final outcome of approval or denial. If the petition is approved and the beneficiary foreign national is outside the U.S., the case enters a consular processing stage.
USCIS will send the USCIS will then send the approved petition to the Department of State’s National Visa Center (NVC), where it will remain until an immigrant visa number is available. Visa number refers to immediate availability of the visa required by the applicant to enter the U.S. There are caps on visa numbers in certain immigrant categories and consequently in many cases there are backlogs or extended wait times until a visa number is available. Analysis and planning is required, as situations arise in which an applicant will have an approved immigrant petition, but will not be able to enter the U.S. for an extended period of time because of the visa number backlog. In many of these cases, an applicant may contemplate an opportunity to enter the U.S. on a non-immigrant visa, and to live and work in the U.S. until such time that a visa number is available and a green card application may be made. Please contact us for more information or to schedule a consultation.
3. Processing with the National Visa Center
The National Visa Center will notify the petitioner and beneficiary when the visa petition is received and again when an immigrant visa number is about to become available.They will also notify the petitioner and beneficiary of when they must submit immigrant visa processing fees to the National Visa center, as well as required supporting documentation to continue processing. Once the visa number is available and proper fees and infortmation was collected the National Visa Center forwards the petitioner’s case to a designated U.S. Consulate or embassy abroad.
4. Appointment at U.S. consulate and determination
The U.S. consular office, upon receipt of the petition, may require additional information and documents from the beneficiary, and will schedule the applicant for an interview. The consular office will complete processing of the case and make a determination of whether the beneficiary is eligible for an immigrant visa.
5. Entering the U.S.
Upon approval of the beneficiary at the U.S. consular office abroad, documentation will be issued including a Visa Packet which the beneficiary will present unopened to U.S. Customs and Border Protection at entry to the U.S. (CBP) If found admissible by CBP, the beneficiary is admitted as a permanent resident of the U.S.
List of U.S. embassies and consulates: http://www.usembassy.gov/