Consular Processing
By Liu Yu
5. Consular Interview
Prior to attending the interview, the applicant must schedule a medial appointment with an authorized physician in the country where the interview will take place. The purpose of the medical appointment is to undergo a physical examination, receive any necessary vaccinations, and be screened for communicable diseases. Each immigrating family member is required to undergo the examination before the schedule visa interview date. This exam must be with an embassy-approved doctor. Exams conducted by other physicians will not be accepted. After the exam, the clinic will either send the exam results directly to the U.S. embassy or give the applicant the results in a sealed envelope. Such sealed envelope must not be opened, but must be submitted to the consular officer at the time of the interview.
Many U.S. Embassies and Consulates require visa applicants to pre-register for courier services. This service is for returning applicant passports and visas to them after the interview. Each U.S. Embassy and Consulate has unique requirements. Before the interview, the applicant and his or her family members should read the specific requirements online for where they will be interviewed.
Every visa applicant must bring the following documents to the interview:
● Appointment letter: The consular appointment letter should be brought as evidence of the scheduled interview.
● Civil documents: An originals and copy of every civil document submitted to NVC. The copies will be collected at the interview, while the originals will be used to verify authenticity of each document and returned to the applicant.
● Eligibility: Employment-based applicants should being verification of their employment-based visa eligibility, such evidence of job offer or investment, as applicable.
● Financial documents: Copies of the Affidavit of Support and corroborating financial documents submitted to NVC by the petitioner and any joint sponsors.
● Medical exam results: If the medical clinic provided the medical results in a sealed envelope, it should be submitted at the interview.
● Passport: Each applicant must bring and submit his or her valid passport.
● Photographs: Each applicant must bring and submit two color, identical, passport-style photographs.
● Other documents: Applicants should review the interview appointment letter and the Embassy or Consulate unique instructions prior to the interview date for any other documentation that may be required at the interview.
On the scheduled date and time of the interview appointment, the applicants should go to the U.S. Embassy or Consulate and a consular officer will interview them, take digital fingerprints, and determine whether or not they are eligible to receive an immigrant visa. Often, a decision is not made immediately but several days later. The Embassy or Consulate may also request additional documents for further verification, particularly in employment-based cases. Since there is no guarantee that a visa will be issued, applicants should not make permanent commitments, such as resigning from a job or purchasing non-refundable travel arrangements, until they have received the immigrant visa.
If a visa is issued, the applicants will also receive a sealed immigration packet, which must be presented to the U.S. Customs and Border Protection (CBP) upon arrival in the United States. Immigrant visas usually have a six-month validity period, during which time the immigrant must enter the United States. Upon entry, immigrants must pay a $220 Immigrant Fee, which funds the production of the Green Card.
6. Inadmissibility
Pursuant to INA § 212(a), certain classes of individuals are deemed inadmissible, meaning that they are barred from entering the United States. Grounds for inadmissibility include the following:
● Health-related grounds: foreign nationals are inadmissible if they are determined to have a communicable disease of public significance, such as but not limited to gonorrhea, leprosy (infectious), syphilis (infectious stage), tuberculosis (active), and any other quarantinable disease designated by Presidential Executive order.
● Criminal grounds: foreign nationals are inadmissible if they have been convicted of, or have admitted to having committed, a crime involving moral turpitude (CIMT) or an offense relating to a controlled substance.
◆ CIMTs generally includes crimes that are inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Examples include, but are not limited to murder, rape, arson, robbery, larceny, theft, and fraud. An exception exists if the crime was a “petty offense” for which the maximum possible sentence did not exceed one year of imprisonment and the actual sentence imposed did not exceed six months. Another exception is made for juveniles who committed the CIMT when they were under the age of 18 and more than five years prior to the date they seek entry to the United States.
◆ Any foreign national convicted of two or more crimes, regardless of whether the crimes were CIMTs, are inadmissible if the imposed sentences for all the crimes aggregate to five or more years of imprisonment.
◆ Other non-CIMT categories of crimes that may render an individual inadmissible include drug trafficking, human trafficking, prostitution, and money laundering.
● Security grounds: An individual may be found inadmissible on the following grounds related to U.S. national security:
◆ Reasonable suspicion of intent to enter the U.S. for the purpose of conducting various unlawful activity;
◆ Terrorist activities or membership or connection with terrorist organizations; or
◆ Membership with a totalitarian party
● Economic grounds: An individual is inadmissible if he or she is deemed to be a “public charge,” which is defined as a person who “by reason of poverty, insanity, disease or disability would become a charge upon the public,” based on an assessment of the following factors: (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills.
● Immigration grounds: An individual may be inadmissible if he or she has previously violated U.S. immigration laws or who is suspected of the intent to violate U.S. immigration laws. Such grounds of inadmissibility may arise from the following acts:
◆ Entry into the U.S. without being admitted or paroled;
◆ Unlawful presence in the U.S;
◆ Failure to attend removal proceedings;
◆ Removal or deportation from the U.S.;
◆ Fraud or misrepresentation for immigration benefits;
◆ Seeking to enter the U.S. without documentation authorizing such entry; or
◆ Smuggling or attempting or aiding to smuggle a foreign national in the U.S.;
● Other grounds: An individual may also be found inadmissible on other miscellaneous grounds, such as ineligibility for U.S. citizenship; evading the military draft; unlawfully voting in an election; practicing polygamy; or participating in international child abduction.
Individuals falling into any class of inadmissibility will be denied a visa by a U.S. Embassy or Consulate, or will be barred from entry by the CBP, despite having an approved petition. Please be aware that the above list is not exhaustive, but provides a general overview of major inadmissibility grounds as prescribed by law. Intending immigrants who have reason to believe they may be subject to or exempt from any ground of inadmissibility should consult with an attorney.
A finding of inadmissibility is not always fatal to an individual’s immigration prospects. The INA authorizes waivers for many, but not all, grounds of inadmissibility. It is not uncommon for an individual to be subject to multiple inadmissibility grounds at the same time. Depending on one’s specific grounds and relevant circumstances, applying for a waiver may require the filing of one or more of the following forms with USCIS:
◆ Form I-601, Application for Waiver of Grounds of Inadmissibility
◆ Form I-601, Application for Provisional Unlawful Presence Waiver
◆ Form I-212, Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal
The requirements for waivers vary, depending on the specific ground of inadmissibility. However, one common requirement among most waivers is the necessity of the applicant to prove that a qualifying U.S. citizen or permanent resident relative would face an extreme level of hardship in the applicant’s absence.
7. Aging Out
Visa categories that grant eligibility to an applicant’s dependent children restrict such eligibility to children under 21 years of age. “Aging out” occurs when a child turns 21 years old before receiving his or her visa and is therefore no longer eligible to immigrate along with his or her parent. Sometimes aging out is unavoidable due to long backlogs and retrogression in the visa queue. But other times protecting against a child aging out may be possible, but requires the right strategy.
The Child Status Protection Act (CSPA), passed by Congress in 2002, alleviated some age-out issues that exist before due to long processing times by USCIS. Per the CSPA, a child beneficiary’s age is deemed frozen during the pendency of a petition with USCIS. Thus, a child may remain eligible for a derivative visa even if he or she turns 21 while a petition is pending – as long as the petition was filed before their 21st birthday.
However, while the CSPA helps to prevent aging out due to USCIS processing times, it does not resolve the risk of aging out while waiting for a priority date to become current. It is nonetheless possible to prevent such aging out if the circumstances allow one or more of the following strategies to be used:
◆ Intentionally prolonging the pendency of the underlying petition with USCIS;
◆ Concurrent filing of an Application for Adjustment of Status;
◆ Filing of an Application for Adjustment of Status per Chart B of the Visa Bulletin; and/or
◆ Payment of visa fee and filing of an Application for Immigrant Visa (when applicable).
Thus, for the reasons discussed above, prospective immigrants with children close to 21 years of age are urged to seek legal advice regarding protecting their children’s eligibility for derivative visas.
8. Consular Processing versus Adjustment of Status
Intending immigrants have two distinct paths to obtaining a Green Card after USCIS approval of their petition. Applicants who are overseas need to go through consular processing as described in this article. Applicants who are already in the United States may instead file a Form I-485, Application for Adjustment of Status, with USCIS and remain in the U.S. while the application is pending. However, adjustment of status is not mandatory. Applicants who are in the U.S. may opt for consular processing and travel abroad to attend the immigrant interview.
Consular processing has several advantages over adjustment of status. It is generally more efficient and faster. The visa application process overseas requires filling out less forms and paperwork than adjusting with USCIS, and can be much quicker. Consular processing can often be completed in as quickly as 6 months, while family-based adjustment of status averages at 8-10 months and employment-based cases frequently takes longer than 2 years. The governmental fees for consular processing are also cheaper – approximately $565 compared to $1,225 per person for adjustment of status.
On the other hand, consular officers have a much wider degree of discretion in their fact-finding and decision-making process, and their decisions are not subject to any review, appeals, or motions to reopen, as is possible with adjustment of status applications that are under the jurisdiction of USCIS. It is also much more difficult to contact a U.S. Embassy or Consulate for case-specific inquiries than USCIS. Moreover, an applicant denied overseas due to a finding of inadmissibility may be unable to enter the United States for a long time, potentially permanently.
Thus, many individuals can benefit from faster processing times and lower fees with consular processing. Applicants in the United States are not required to undergo adjustment of status – they may initiate consular processing and take a short trip abroad when a visa interview is scheduled. However, those with a complicated case but who are nonetheless eligible for adjustment of status are better off avoiding consular processing to take advantage of the protections afforded to foreign nationals present in the United States.
（The End）
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