Consular Processing
By Liu Yu
1. Overview
Consular processing is the processing and issuance of visas by U.S. embassies or consulates for applicants outside of the United States. Immigration to the United States usually involves several stages of applications through various departments of the U.S. Government:
(1) Foreign labor certification with the U.S. Department of Labor (DOL) – this first stage is required for most employment-based immigration. The sponsoring employer must apply for certification to the DOL and establish the necessity of hiring a foreign worker to permanently fill a vacant job position for which no qualified U.S. worker could be found.
(2) Immigration petition with the U.S. Citizenship & Immigration Service (USCIS) – in this stage, the USCIS adjudicates a beneficiary’s qualification for the particular type of visa applied for. In family-sponsored petitions, this means establishing a bona fide relationship between the petitioner and beneficiary. In employment-based petitions, it means establishing the beneficiary’s qualification for the sought employment category.
(3) Application for Adjustment of Status or Application for Immigrant Visa
◆ Beneficiaries who are already in the United States at the time USCIS approves their petition may stay in the U.S. and file with USCIS an Application for Adjustment of Status to register their permanent residency and obtain a Green Card.
◆ Beneficiaries who are overseas when their petition is approved by USCIS must apply for an immigrant visa with the U.S. Department of State (DOS).
The U.S. Department of State is responsible for issuing all visas to foreign nationals in both immigrant and non-immigrant cases. For beneficiaries of approved immigration petitions, the final stage of obtaining an immigrant visa to permanently come to the United States requires the following two sub-steps of processing:
(1) National Visa Center (NVC) – the NVC is an agency within the DOS, and is responsible for charging visa fees, reviewing visa applications, and collecting all biographical documentation from applicants for an immigrant visa.
(2) Consular Processing – after NVC has collected all the necessary information and documentation from an applicant, it will transfer the applicant’s case to a local U.S. Embassy or Consulate in the country of the applicant’s birth or permanent residency. The Consulate will schedule an appointment for the applicant to come for an interview, at which time an officer will review all documents for authenticity and continued immigration eligibility, as well as determine whether the applicant may be barred from entering the U.S. due to any grounds of inadmissibility. Upon successful adjudication of the application, the Consulate with affix an immigrant visa into the applicant’s passport.
2. Priority Dates and Visa Availability
The Immigration and Nationality Act (INA) specifies the number of immigrant visas that may be issued to foreign nationals seeking to become lawful permanent residents (Green Card) each year. Immigrant visas for the family-sponsored and employment-based immigrant preference categories are numerically limited, so they are not always immediately available.
Generally, family-sponsored preference visas are limited to 226,000 visas per year and employment-based preference visas are limited to 140,000 visas per year, though such limits may be exceeded when certain immigrant visas from the previous fiscal year’s allocation were not fully used. Both family-sponsored and employment-based categories are further divided into several sub-categories, each of which receives a certain percentage of the overall visa numbers as prescribed by law. Additionally, there are limits to the percentage of visas that can be allotted each year to nationals of every country.
When the demand for visas is higher than the supply of visas for a given year for any given category or country, such category or country is deemed to be “oversubscribed,” and a visa queue (waiting list or backlog) forms, at which time DOS allocates the visas according to prospective immigrants’ priority date. A priority date is usually the date on which the petition on behalf of the immigrant was filed with USCIS. The priority date is used to determine an immigrant’s place in the visa queue. When the priority date is reached, it is deemed to be “current,” and a visa becomes available to the intending immigrant.
Not all immigrant visas are subject to annual caps. Immigrant visas for immediate relatives of U.S. citizens are unlimited, so they are always available. Immediate relatives include spouses, parents, and unmarried children under the age of 21.
“Chargeability” refers to the country to which an immigrant’s visa is allocated to. Immigrant visas are usually charged to the primary applicant’s country of birth. However, exceptions may be made under the following circumstances:
● Married applicants may request chargeability to the country of the birth of their spouse;
● Minor children may request chargeability to the country of birth of either accompanying or joining parent (but parents may not use the chargeability of their children); and
● Applicants born in the United States are considered to be born in the country of their citizenship.
These exceptions of alternate chargeability are very useful in cases where visas for an applicant’s country of birth are backlogged. By requesting chargeability to a spouse’s or child’s country of birth, a family can often save many years of waiting in the visa queue.
3. Visa Bulletin
DOS maintains a Visa Bulletin, which tracks the immigrant visa queue. The Visa Bulletin, updated on a monthly basis, provides the most recent date for when a visa number is available for the different categories and countries. A visa is available when the priority date is earlier than the cut-off date shown for each preference category and country. If the demand for immigrant visas is less than the supply in a particular category and country, the Visa Bulletin shows that category as “C,” meaning that immigrant visas are current and immediately available to all qualified applicants in that particular preference category and country of chargeability. If the Visa Bulletin shows “U” in any category, this means that immigrant visas are temporarily unavailable to all applicants in that particular preference category and/or country of chargeability.
Sometimes the Visa Bulletin may move the cut-off priority dates backward to an earlier date than was shown in the previous month. This is called visa retrogression, which occurs when more people apply for a visa in a particular category than there are visas available for that month. Visa retrogression generally occurs when the annual limit for a category or country runs out or is expected to run out soon. When a new fiscal year begins on October 1st, a new supply of visa numbers becomes available, and may alleviate or eliminate the backlog.
In 2015, DOS and USCIS implemented a new, two-tiered system within the Visa Bulletin. The new system maintains two charts of cut-off dates. The “Final Action Dates” chart (also referred to as “Chart A”) displays the eligible cut-off date to receive the immigrant visa in the applicable visa category. The “Dates for Filing” chart (also referred to as “Chart B”) displays the eligible cut-off date to be able to file an application for a visa or for adjustment of status. Filing an application per Chart B will allow an individual to file the relevant forms and supporting documents before their priority date becomes current. In consular processing cases, this can help an applicant save paperwork time when a visa does become available. In adjustment of status cases, filing an application per Chart B allows applicants to lawfully stay and work in the U.S. while they wait for their priority date to become current.
4. National Visa Center
The National Visa Center usually receives an approved immigration petition file within a month of approval by USCIS. If the petition’s priority date is not current and ineligible for either filing or final action, NVC will generate a case number and merely inform the applicant to wait for further instructions when the priority date becomes current. If it is already current, NVC will send the applicant an invoice for applicable visa fees.
All applicants must pay a visa fee, and family-sponsored applicants must also pay an additional Affidavit of Support fee. These two fees are used to fund the processing of two distinct groups of documents. The visa application fee (currently $325 for family-based visas and $345 for employment-based visas), funds the processing of an applicant’s visa application, background verification, and consular interview process. The Affidavit of Support fee (currently $120) funds the unit of NVC responsible for verifying that a family-sponsored petitioner is financially capable of supporting his or her relative beneficiaries. Both fees must be paid by each visa applicant, which may include the primary beneficiary, his or her spouse, and any children.
Upon receiving an NVC invoice, the primary applicant must first verify whether all applicable family members have been included. If any family members need to be added or removed from the list of immigrants accompanying the primary applicant, a formal request must be made to NVC with documentation corroborating each relationship. After the list of immigrating family members has been finalized, the applicant may pay all applicable fees through an online portal.
Next, the applicant and his or her accompanying family members must fill out a Form DS-260, Application for Immigrant Visa. This application includes a thorough questionnaire of each family member’s background, including places of residence, family relationships, education and work history, and security questions pertaining to potential U.S. inadmissibility issues.
The last step to complete with NVC is to collect and submit all necessary documents in support of each visa application. These are called civil documents, and include the following:
● Adoption Documentation: for family-sponsored petitions where the beneficiary child was adopted, documentation is necessary to establish legal and physical custody over the child.
● Birth Certificates: each immigrating family member must submit a birth certificate from the proper agency of the country of birth. In family-sponsored petitions for parents or siblings of a U.S. citizen, the petitioner must submit his or her birth certificate as well.
● Court and Prison Records: if any applicant was ever convicted of a crime anywhere in the world, he or she must submit each court and prison record.
● Marriage Certificate: if any applicant is married at the time of the intended immigration, he or she must submit a marriage certificate.
● Marriage Termination Documentation: if any applicant was ever previously married, he or she must submit documentation establishing that every prior marriage was legally terminated. In family-sponsored petitions for a spouse of a U.S. citizen, a petitioner who has ever had a prior marriage must also submit documentation establishing that every such prior marriage was legally terminated.
● Military Records: if any applicant ever served in the military of any country, he or she must submit a record of such military service.
● Passport Biographic Data Page: each immigrating family member must submit a copy of the biographic data page from his or her currently valid passport.
● Police Certificates: Each applicant must obtain and submit a police certificate issued within the past year. A police certificate is a record by appropriate police authorities detailing any arrests and dispositions have ever occurred, or stating that no arrests ever took place. Applicants 16 years of age and older must obtain a police certificate from: (i) their country of nationality and/or country of permanent residence (if they have ever lived in such country for more than 6 months); any other country they have ever lived in for a year or longer; and any other city and/or country in which they have ever been arrested at any age. Applicants that reside or have ever resided in the United States do not need to obtain a U.S. police certificate.
In addition to the civil documents, most family-sponsored cases and some employment-based cases require petitioners to submit an Affidavit of Support form and evidence of their income. The Affidavit of Support is a legally binding contract used to establish the petitioner’s ability and obligation to financially support each beneficiary immigrant to a minimal degree required by law. An Affidavit of Support must include the following documents:
● Form I-864 / I-864EZ / I-864W: The applicable Affidavit of Support form must be filled out by the petitioner. If the petitioner does not meet the minimum income requirements, a joint-sponsor may be used who must also submit the form.
● Proof of Income: Petitioners and joint sponsors must submit a copy of their tax return from the most recent year, as well as disclose their income from the previous two years. If the most recent tax return does not establish sufficient income, additional evidence may be used, such as paystubs or other proof of income.
● Proof of Domicile: Petitioners residing abroad must also submit documentary evidence to prove that their foreign residency is of a temporary nature and that they have maintained their domicile in the United States.
After all civil and financial documents have been received by NVC for each immigrating family member, NVC will transfer the case to a U.S. Embassy or Consulate in the applicant’s country of nationality or permanent residence and schedule an appointment for the applicant and his or her accompanying family members to appear at an interview.
（To be continued）
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