Consular Processing

Consular processing, or “visa interviews” in U.S. Department of State (DOS) consular officer parlance, refers to immigrant visa applications conducted outside the United States at an embassy or consulate. The process can be thought of as the second step of a two-step pathway to a green card. The first is typically one of three initial events:

An alien is the beneficiary of an approved family-based visa petition, which was filed with U.S. Citizenship and Immigration Services (USCIS) by the alien’s qualifying relative.
An alien is the beneficiary of an approved employment-based visa petition, which was filed with USCIS by an employer (e.g., PERM labor certification) or by the alien him- or herself (i.e. EB-1, EB-5, and NIW applications).
An alien is selected in the diversity visa lottery, or is the beneficiary of another visa category (e.g., refugees or asylum-seekers).

Who undergoes consular processing?

All beneficiaries of an immigration petition who are currently abroad must go through consular processing. For aliens presently in the U.S., two options are available: apply for an adjustment of status (AOS) in the U.S. via submitting Form I-485 to USCIS, or return to their home country and apply for an immigrant visa through consular processing with DOS.

Overview

During consular processing, an approved immigrant petition is sent from USCIS to either the State Department’s Kentucky Consular Center or the National Visa Center (NVC), depending on the type of case, before being forwarded to a DOS embassy or consulate for the subsequent interview. Consular processing will commence only when the underlying immigration petition is approved by USCIS and a visa number becomes available. (For up-to-date information on visa number availability, click here.)

Advantages

Despite the more complicated workflow and additional agency involved, consular processing might be the preferred choice for prospective lawful permanent residents due to efficiency and convenience. Consular processing is often quicker than the AOS application and adjudication process. On average, the time frame for consular processing is between five and 13 months, whereas USCIS can take an average of one to two years, or more, to render a decision on an I-485 petition. At the California Service Center, for example, officers were still processing AOS petitions dating back to April 2015 in July 2017.

Disadvantages

The major drawback to consular processing is that it may present a more rigid and potentially adverse situation to certain green card applicants. The following reasons help illustrate why:

Consular officer decisions are generally non-reviewable.
Known and potential ineligibilities must be disclosed and considered (e.g., criminal history, including driving under the influence arrests, prior overstays, entry without inspection scenarios, etc.).
Lawyers generally cannot be present with their clients during the consular interview.
Administrative processing delays due to national interest, national security, and foreign policy considerations may prolong the pendency of certain cases.

Even more potentially grave, an immigrant visa beneficiary may be subject to espionage, terrorism, and financial ineligibility review due to his or her name, age, gender, nationality, work history, family history, or prior travel, and even for reasons that may be completely unrelated to the beneficiary.

For more information on the advantages and disadvantages of consular processing, click here.

Making the Decision

In light of the brief discussion above on the pros and cons of consular processing, here are five scenarios to help illustrate whether consular processing is appropriate for your situation. As each case has its own particularities, it is best to speak with an experienced immigration attorney about your situation. Click here to contact our firm for a free consultation today.

Case Study 1: Alien A is currently outside the U.S.

Options
Because she is located abroad, Alien A is not eligible to apply for an AOS. Consequently, the only option she currently has is to go through consular processing.

Case Study 2: Alien B is a Canadian national currently in the U.S. with a valid nonimmigrant status. He has never experienced any criminal, customs, or administrative issues.

Options

After B's immigration petition is approved, B may apply for either consular processing or for an adjustment of status.
Because B is a Canadian, for certain cases, B’s consular processing might be conducted with U.S. Customs and Border Protection (CBP) instead of with DOS at a land border or airport preclearance location.
Since B has never had criminal, customs, or administrative issues in his past, B is an excellent candidate for consular processing, assuming it is also the most efficient and convenient pathway for his case.

Case Study 3: Alien C is the beneficiary of an approved family-based petition currently residing in Texas. A visa number is available to her.

Options

Because she is presently in the U.S., Alien C may apply for either consular processing or submit an I-485 petition to USCIS. In this hypothetical, the time frame for an adjustment of status application based on an approved family-based immigration petition is extremely lengthy. Accordingly, for purposes of efficiency, C chooses to apply for consular processing.
However, if Alien C had entered the United States without inspection, was previously arrested, had been convicted of a crime, previously had difficulty in obtaining a prior visa, or for a variety of other potential issues, then for the reasons listed above, consular processing might not be the best option for her.

Case Study 4: Alien D is the beneficiary of an approved National Interest Waiver (NIW) petition. Alien D is currently in the U.S. in H-1B status; however, his H-1B will soon expire.

Options

Because he is presently in the U.S., Alien D may apply either for consular processing or for an adjustment of status. Because applying for an AOS has the benefit of also applying for an employment authorization document (EAD), Alien D chooses to remain in the United States and apply for an AOS.
Other considerations may also influence D’s decision to select AOS instead of consular processing, including, for example, past difficulty in obtaining any visa except a one-entry visa valid for three months.

Case Study 5: Alien E, a Chinese national, is the beneficiary of an approved NIW petition. She is currently in the U.S. and was previously the beneficiary of a J-1 visa. For financial reasons, it will be difficult for Alien E to obtain a J-1 no-objection waiver. On top of this, there is a significant backlog in immigrant visa numbers for foreign nationals from mainland China. Lastly, Alien E would like to return to China to help care for her elderly parents.

Options

Alien E chooses not to pursue an AOS petition and J-1 waiver. Accordingly, E decides to go back to China, where she will stay for two years in order to satisfy the J-1 home-country residency requirement.
After E returns to and resides in China for two years, and only when an immigrant visa number becomes available, E may thereafter apply for consular processing.

Our Firm is Here to Help

While the above situations may highlight common issues and experiences, we cannot stress enough the fact that every case is unique and requires a detailed review of the beneficiary’s background. Preparing for the consular interview and collecting supporting materials in advance can help expedite the process.

Cases involving potential visa ineligibility or beneficiaries who have connections to certain scrutinized countries are strongly advised to consult with a lawyer who specializes in or has prior experience with consular processing. At Zhang & Associates, our attorneys have decades of experience successfully facilitating consular processing for our foreign-based clients. One of our associates, Sechyi Laiu, spent several years as a consular officer at multiple U.S. diplomatic posts worldwide.

For official news and updates on consular processing, click here.

For more detailed information on consular processing, refer to the following links:

Updated 07/31/2017