If you seek permanent residence through an immigrant petition filed by a family member or employer and you are outside the U.S. (or are in the U.S. but cannot file for adjustment of status), you must obtain your immigrant visa at the U.S. Consulate.
Known as “consular processing,” this pathway to a green card often involves delays and setbacks at all stages of the application process.
#1: WAITING FOR PETITION APPROVAL
In family-based immigration, only relatives who fall in specific family-based categories qualify for an immigrant visa. The first step is for a U.S. citizen or permanent resident relative to file a Form I-130 petition for you to immigrate to the U.S.
In employment-based immigration, only persons who fall in designated employment-based categories qualify for an immigrant visa. A U.S. employer usually has to file a Form I-140, Immigrant Petition for Alien Worker, for you to immigrate to the U.S. In the employment-based fourth preference(EB-4) immigrant category, the U.S. employer must file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
In some cases, the I-140 petition may be filed by the foreign national beneficiary, such as in EB-1 Extraordinary Ability and EB-2 National Interest Waiver petitions.
In the employment-based fifth preference (EB-5) immigrant category, the Form I-526, Immigrant Petition by Alien Entrepreneur, is filed by the foreign national immigrant investor.
Delays and Setbacks
Long Processing Time
Due to case volume and other factors, USCIS’ processing times for immigrant petitions vary greatly (e.g. 4 to 12 months). If there is a backlog in your visa category, USCIS may also put the petition on the backburner.
During processing, USCIS may issue a Request for Evidence (RFE) when there is insufficient information or documents to approve the petition. In some cases, USCIS may issue a Notice of Intent to Deny Petition (NOID) when it finds the beneficiary is not eligible for the benefit sought. USCIS will not approve the petition unless an adequate and timely response is submitted.
The date USCIS receives the petition, not the date USCIS approves the petition, affects when an immigrant visa becomes available in the preference categories. Nevertheless, the petition must first be approved before you may apply for an immigrant visa.
Challenges with Proving Eligibility in Family-Based Immigration
In family-based immigration, petitioners must show they have the required relationship with the beneficiary, besides presenting documentary proof of their U.S. citizenship or permanent residence.
Proving a parent-child relationship can be a problem when there is no birth certificate or when the birth certificate was registered late.
Proving a legal, bona fide marriage in spousal petitions carries challenges. The petitioner must present the requisite marriage certificate and divorce decrees (for any prior marriages), showing the marriage was legal in the place where it occurred.
Furthermore, the petitioner must provide documentary evidence establishing the marriage was entered into in good faith, for the purpose of creating a life together as spouses, and not for immigration purposes. When the petitioner lives in the U.S. while the beneficiary lives overseas, there is limited documents to present. For example, there is no joint lease, joint bills, joint tax returns or other documents that married couples who live together would normally have.
Adam Walsh Act
The Adam Walsh Child Protection and Safety Act, which was signed into law in 2006, prohibits U.S. citizens and permanent residents who were convicted of a “specified offense” against a minor from petitioning for family members, particularly a spouse or a child. USCIS may not approve these I-130 petitions unless it finds the petitioner poses “no risk” to the family member.
Significant delays, notices of intent to deny, and decisions denying the immigrant petition often results when the Adam Walsh Act applies.
Challenges with Proving Eligibility in Employment-Based Immigration
In employment-based immigration, the petition must contain extensive, reliable documentary evidence of the beneficiary’s qualifications, including the requisite degree, academic records, and support letters from current and past employers. Those who are filing for EB-1 and EB-2 (Exceptional Ability and National Interest Waiver) classification must also provide specific evidence showing they meet the criteria.
Immigrant petitions that require job offers must also include evidence that the U.S. employer has the ability to pay the proffered wage. Examples are copies of annual reports, federal tax returns, or audited financial statements.
Labor Certification in EB-2 and EB-3 categories
Immigration petitions involving professionals with Advanced Degrees or Exceptional Abilities (EB-2, excluding NIWs) and professionals with a bachelor’s degree, skilled workers, and unskilled workers (EB-3) must be accompanied by a PERM Labor Certification issued by the Department of Labor.
Prior to filing the I-140 petition, the U.S. employer must complete a process to recruit U.S. workers and then file for the labor certification. The DOL must certify to the USCIS there are insufficient U.S. workers able, willing, qualified and available to accept the job in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Forwarding of Case from USCIS to NVC
Upon completing review of the immigrant petition, USCIS issues a decision. If the petition is denied, the notice will include the reasons for denying the petition and explain any rights to appeal the decision. If the petition is approved and you are applying for an immigrant visa abroad, USCIS will forward the approved petition to the U.S. Department of State’s National Visa Center (NVC).
#2: WAITING FOR INSTRUCTIONS FROM NATIONAL VISA CENTER (NVC)
Even with an approved immigrant petition, you may not start applying for an immigrant visa until one is available or is about to become available. The only category in which immigrant visas are always available is the immediate relatives (family-based) category. Immediate relatives include:
- The spouse of a U.S. citizen
- Minor child (under age 21) of a U.S. citizen
- Parent of an adult U.S. citizen (age 21 or older)
- Step-parent of an adult U.S. citizen (if the step-parent, step-child relationship began before the citizen’s 18th birthday)
- Step-child of a U.S. citizen (if the step-parent, step-child relationship began before the step-child’s 18th birthday)
- The spouse of a deceased U.S. citizen (if the spouse was married to the deceased U.S. citizen for at least two years and the application for permanent residence was filed within two years of the death of the U.S. citizen)
Those in the family-sponsored preference and employment-based categories must wait for their priority date to become current.
The NVC is responsible for processing immigrant visa applications before they are forwarded to the U.S. Consulate. It will send instructions to the petitioner and/or beneficiary when an immigrant visa is about to become available.
Delays and Setbacks
Backlog in the Preference Categories
The priority date marks the applicant’s place in the visa queue. In family-sponsored, preference categories, the priority date is the date USCIS received the Form I-130, Petition for Alien Relative, or in certain cases, the Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.
In employment-based categories, the priority date is the date the Department of Labor (DOL) received the application for alien labor certification or the date USCIS received the I-140 petition (if no alien labor certification is required). In certain cases, it’s the date USCIS received the Form I-360 petition (EB-4, fourth preference category) or the Form I-526, Immigrant Petition by Alien Entrepreneur (EB-5, fifth preference category).
In October 2015, the Department of State made changes to the monthly Visa Bulletin so there are now two different dates to track: the Application Final Action Dates (AFAD) and the Dates for Filing Applications (DFA).
AFADs are the cut-off dates that determine when an immigrant visa becomes available. If your priority date is earlier than the cut-off date in the AFAD chart, or the AFAD is “current” (“C”) for the preference category and country of chargeabilty, you may receive an immigrant visa following completion of the application process.
DFAs are the cut-off dates that determine when the applicant should receive instructions from the NVC to submit documents for consular processing. When your priority date is earlier than the cut-off date in the DFA chart, you may submit required documents to the NVC, following receipt of instructions to do so.
When demand exceeds supply of visas for a given year in a given category or country, a visa backlog forms. It usually takes several years for a visa to become available. In the F4 (brother or sister of adult U.S. citizen) category, for example, the wait for a visa to become available is usually 10+ years.
Challenges with Submitting Required Forms and Documents
At the appropriate time, the NVC will send instructions to the visa applicant to pay the appropriate fees: Form DS-260, online immigrant visa application fee, and Form I-864, Affidavit of Support fee (in all family-based immigration cases and in certain employment-based immigration cases).
After the fees are paid, the NVC will request the visa applicant to submit the required documents, including DS-260 application form and civil documents (e.g. birth certificate, police certificate, and photocopy of valid passport biographic data page) .
Visa applicants must also submit a Form I-864 and supporting financial documents proving they will not become a public charge to the U.S. government (in all family-based immigration cases, and in certain employment-based immigration cases where a U.S. citizen or permanent resident relative filed the Form I-140 petition or where such a relative has a significant ownership interest in the entity that filed the petition).
The NVC will issue a Request for Evidence if the visa applicant fails to submit all the required documents, such as his birth certificate, police certificate, and Form I-864 with supporting financial evidence.
Forwarding of Case from NVC to U.S. Consulate
The NVC will forward the immigrant visa file to the U.S. Consulate only when it is satisfied that all required forms and documents have been submitted. The NVC may termination registration (close case) when applicants have not responded to its instructions within one year.
#3. WAITING FOR IMMIGRANT VISA INTERVIEW
After your case becomes qualified for an interview, NVC will work with the appropriate U.S. Consulate to schedule an appointment for you.
Visa interviews are normally scheduled one month in advance. The U.S. Consulates inform the NVC of the dates they are holding interviews, and NVC fills these appointments on a first-in, first-out basis. Most interviews are scheduled within 60 days of NVC’s receipt of all required documents.
Delays and Setbacks
Completing Medical Examination
An immigrant visa cannot be issued if you do not complete the medical examination, along with required vaccinations, by an authorized panel physician in your country.
Prior to the interview, you should schedule and complete the required medical examination. Completing the medical examination after the visa interview will delay your case until the U.S. Consulate receives the results.
Completing the medical examination too soon (well before the interview) can cause delays as well. The medical report is valid for one year from the date of the medical examination. The examination must be redone if the report has expired or will expire before you enter the United States.
Failing to Appear at Visa Interview or Requesting Rescheduling
Although you usually have a month’s notice, you have no control over when the visa interview is scheduled. Failure to appear could lead to significant delays or a termination of your visa application. Requests for interview rescheduling will delay processing by several months.
#4: WAITING FOR IMMIGRANT VISA GRANT
At the visa interview, you will be expected to submit original documents or certified copies, such as your birth certificate and marriage certificate (if applicable). The consular officer will verify the authenticity of the documents and question you about your eligibility for the visa.
The U.S. Consulates have tremendous power in deciding whether to grant an immigrant visa. The doctrine of consular non-reviewability prohibits judicial review of visa denials. There is no formal appeal process to challenge a visa denial.
Delays and Setbacks
Section 221(g) of the Immigration & Nationality Act (INA) allows the U.S. Consulate to conduct further administrative processing before it issues the visa or determines whether you are eligible for the visa.
Administrative processing involves a wide range of activities. Examples are request for a Security Advisory Opinion (SAO) from the Department of State on whether the applicant poses a risk to the United States; more in-depth investigation to check for fraud; and request for review by a supervisor at the U.S. Consulate.
There is generally nothing you can do to speed up administrative processing and you are not told why it is necessary. While the delay is frustrating, cases that are otherwise approvable are rarely sent for administrative processing.
Under section 221(g) of the INA, a consular officer may refuse to grant the visa due to missing information on the application forms or missing documents. For example, when the visa application is based on a spousal petition, the U.S. Consulate may request additional documentary evidence of the bona fide nature of the marriage. In some cases, it may return the petition to USCIS for revocation if it determines the petition should not have been approved.
Section 212(a) of the INA lists various grounds under which a visa applicant is inadmissible to the U.S. (i.e. barred from entering the U.S.) The most common include fraud or willful misrepresentation of material facts to gain immigration benefits; crime-related problems; unlawful presence in the U.S. lasting more than 180 days; public charge issues; and illegal re-entries into the U.S.
Waivers of inadmissibility are available for some grounds and not for others. When a waiver is available, the visa applicant must also meet the requirements to apply for it.
If the U.S. Consulate finds you are inadmissible to the U.S., it will not grant the immigrant visa unless you (a) successfully challenge the finding by filing a motion to reconsider with the Consulate or (b) obtain a waiver of inadmissibility by filing a Form I-601 and/or Form I-212 with the appropriate agency.
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If all goes well, the U.S. Consulate will stamp an immigrant visa in your passport, which is normally valid for six months. It will also give you a sealed Visa Packet containing documents you must present to U.S. Customs and Border Protection at a port-of-entry (e.g. airport) upon your arrival in the United States. Do not open the sealed packet.
The CBP will verify whether you are admissible to the U.S. before it admits you to the U.S. as a permanent resident. The CBP’s endorsement of the visa serves as temporary evidence of your immigrant status. You will be mailed your green card after you pay the USCIS Immigrant Fee.
Applying for an immigrant visa often involves delays and setbacks in all stages of the process. Work with an experienced immigration attorney to maximize your chances of obtaining an approval in the fastest time possible.
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
Photo by: Omar Parada