US Visa Consular Process
Author: USA Immigration lawyer Alena Shautsova
If you are living outside the United States and are ineligible for adjustment of status and want your applications to be processed through consulates for some certain reason, then you have to undergo consular processing that is done through the national visa center and consular post1. Immigrant visa processing has been divided into three systems.
- Instruction Packet
- Appointment Packet
- Follow-up Instruction Packet2
The procedure and location for the consular processing are determined by the secretary of states3. If you have applied for consular processing and encountered any issue in following up your files at national visa centers, you can write to NVCresearch@state.gov and for other inquiries, you can make use of the Ask NVC portal. There is special assistance for EB-5 investors by NVC.
Communication-related to immigration visas with U.S citizenship and immigration services (USCIS) is directed to National visa centers.
The general procedure for national visa centers is discussed below. USCIS forwards your documents including approved I-130/I-140 to the national visa center who performs the pre-interview functions.4 Followed by which, an affidavit of support fee along with an immigration visa fee bill are sent to you or attorney of record with instruction with the checklist of the forms and supporting documents like birth certificates, marriage certificate, police records needs to be submitted to the NVC.
If no attorney is designated, then make sure to fill the DS-3032 form that will allow you to designate a representative. After you make the payments, the required forms and supporting documents like DS-260 which is the immigration visa electronic application, the I-864 affidavit of support needs to be submitted to NVC.
The documents5 that you need when applying for an immigration visa are:
- A valid unexpired passport or any other important travel document.
- Police certificate: You will not need this certificate for the time that you have resided in the United States or for the time you resided in a country of nationality or residence if you are over 16 and have lived there for less than six months. It is also important to obtain your civil and other documents, even if they are not reliable6. Fingerprint checks will be required at certain consular posts if you are above 16 years of age.
- I-864 i.e., affidavit for support: It is imperative for family-based and employment-based application (In a limited sense, in this case)7. The petitioner for the Immigration visa must be the sponsor and domiciled in the United States, which prevents relatives living abroad from petitioning for their visa unless they are establishing residency in the United States. Another important requirement in I-864 includes that you as a sponsor and your joint sponsor need to show income that is 125% above the poverty guidelines. The affidavit should also include a copy of the sponsor's latest IRS tax return and IRS transcripts (depending on the consular posts), but it is always prudent to have them before the interview.
- Certified copies of prison and military records, even if you were granted parole, amnesty, and other acts of clemency.
- Certified copy of the birth record
- Non-custodial parent permission: When your child is immigrating with you to the United States then an appropriate notarized statement is required from the non-custodial parent, stating that the child is allowed to leave and ensuring that the local authority permits the child to leave.
- Documents establishing relationship to spouse (Marriage certificate) and children
- Marriage termination documents like a final legal divorce decree, death certificate, or annulment papers
- Identity documents and Visa classification regarding visa eligibility
- Medical examination: An Immigration visa is issued at the consulate for the duration of your medical exam that expires within 3-6 months depending upon the medical exam. It is also important to note that a fee must be submitted electronically to USCIS to process this immigrant Visa when you arrive in the U.S. The medical exam needs to be performed by doctors overseas and cannot be done in the United States. Medical examinations are only valid for 6 months or less. Please note that facts learned by doctors can be grounds to deny admission.
We also suggest you have a department of state public charge form (DS 5540) with you which you might need to show at the time of the interview.
You also need to file a DS-260 which includes the following information:
- Details of multiple social media accounts
- Identifiers used by you for those platforms during the past 5 years
- Telephone and email address used in last 5 years
- Places you have traveled for the past 5 years
- Have you been deported or removed from any country?
- Any family member involved in terrorist activities
The documents can be mailed to NVC or scanned and uploaded to the Consular electronic center (CEAC), however, it depends on the type of approved petition and the interviewing post. Please note that you are not required to attach the original documents as you’ll need to produce them at the time of an immigration visa interview.
As your case gets completed, your file will be sent to the respective consular post and an appointment letter will be generated mentioning the details of when to appear at the consulate and instructions for your medical exam.
How are consulates decided and what are the exceptions for the same?
Consulates are designated usually as per the last place that you resided abroad and not your country of nationality8, this is known as the residence rule.
However, there are some exceptions to it that are discussed below. Please note that these are discretionary acceptance9, so it will be solely on the respective authorities if they want to designate the consulate or not.
- If you are already in the United States
- If you will suffer hardships10 if you return to your residence. Hardship arises when there’s any presence of war, wide-spread civil disturbance, revolution, or any other phenomena in your country or an inability to travel long distances because of physical or advanced age11. When hardship is evident through the circumstances, the consulate is encouraged to accept the case.
Please note that military services, travel charges, or inconvenience cannot be the basis to show hardship.
- The Second exception arises in the case of homeless visas. As per the department of state, if you are a national of a country where there’s no consular representation or where the political and security situation is tenuous or certain enough and because of that limited consular staff is not authorized to process the immigrant visa applications.
- Third and the last exception is when the United States citizenship and immigration services grant travel document I-512, also known as advance parole, allowing a non-citizen who does not possess an immigrant visa to come back to the United States.
Things you need to take care of at the consular post
If you have been unlawfully present in the United States for more than 180 days but less than a year or for more than a year or more after April 1997 and you have left the country for any reason, including consular processing, you may be barred from entering the United States for three to ten years12. In some cases, however, waivers of admissibility may be granted which you can find.
It is critical to remember that the burden of proof to prove that you are eligible for an immigration visa is up to you, you need to show that you are documentarily qualified.
Before the immigration visa will be issued, your name will be checked for name-checks on the consular lookout and support system (CLASS) and national crime information center’s interstate identification index for the criminal activity by the department of states, and the information derived from it will be passed to DHS and consular officers. If any criminal activity is detected that consular officer may request your fingerprints13.
Further, as per section 428 of the homeland security act of 2002 and MOU signed between the Department of State and the department of homeland security (DHS) has the final authority for regulatory visa guidance. Some of the responsibility includes:
- Waivers except for INA §§ 212(d)(4)(B) and 212(l) waivers
- Non-immigrant visas
- Determining qualifying treaties and substantial questions, designate qualifying program visas
- Designate qualifying programs
- Inadmissibility except in cases of president proclamation under INA § 212(f) and certain terrorist, religious freedom violators, and Nazi grounds.
- Evidentiary criteria for visa eligibility
- Classification of immigration and non-immigration visas
As per HSA §428(e), DHS can assign employees to consular and diplomatic posts to provide expert advice, training specific security threats, reviewing of visa applications, and conduct investigations related to consular matters.
If you have applied for adjustment of status before submitting your immigration visa application, you are required to submit the I-824 form to USCIS who will forward your petition to the national visa center after it has been approved. But if you applied for an immigrant visa and later decided to adjust your status, you would need to submit the I-485 along with the approved petition by USCIS.
Important points to remember on your immigrant visa approval and termination of the visa petition
A. If the visa is not issued within one day or the next working day after applying, it might be considered ineligible. Here are a few reasons why your application is considered ineligible.
- When the consular post decides to make local inquiries or conduct a full investigation
- In the event of a medical deferral
- When an advisory opinion is requested
- When a clearance from another post is required
Please note that a consular officer can either issue the visa or refuse it, they don’t have the authority to temporarily refuse, suspend, or hold the visa for future action14. Also, any sheet of paper informing you that your visa is approved holds no value and doesn’t give you any surety that your visa has been approved and any claim based on that paper will be dismissed15.
B. Your case for an immigration visa can be terminated in the following circumstances16:
- In the event, you have not made an application within one year of receiving the immigration visa appointment letter or other notice of visa availability
- If you failed to appear for the visa interview at the scheduled date and failed to take any further action within one year of the scheduled interview
- Any essential information was found missing in your application or if your application requires administrative processing and you fail to present any evidence to overcome the grounds of the rejection within one year from the date of the refusal.
- If you fail to comply with the follow-up instruction package
Generally, after one year you’ll be receiving a letter from the consulate probably as a final call, notifying the possible termination and giving you the opportunity if you still wish to pursue the immigration visa. If you wish to continue with the IV process and return the DS-260 form which is Immigrant Visa and Alien Registration Application and DS-20021 which is a notification of applicant readiness once you have assembled all your document.
The consular officer will process the application in the same manner as who responded to the instruction package and if you send the response to the national visa center then the national benefits center will process it and collect requisite forms and fees.17
If you do not respond to the notice from the consulate or NVC, the procedure for terminating your application will begin. After the petition has been terminated, the original priority date is also lost18.
If you respond to the notice or do any activity after the first year but before the end of the second year, stating that your failure to appear was beyond your control, then the period will be extended to one year, allowing you to apply or continue your application19
In what cases consular officer can return the petition to USCIS?
The consular officer will only review your application. The approval of your petition under INA § 204 constitutes prima facie proof of your eligibility. Your petition cannot be returned by the consular officer unless specific, substantial evidence of either a misrepresentation or facts unknown to DHS are presented. There is no reason for the official to return the petition to DHS.
It's very important not to use a returning petition lightly since the process is very lengthy and the evidence needed to revoke the petition is very high. That’s why a consular post should refrain from using the revocation request process when only suspicion of fraud, misrepresentation, ineligibility exists.
Consular officer can only suspend action and return the petition in the following circumstances:
- If you as a petitioner, seeks suspension of the petition
- When the officer knows or has reason to believe that the approval was obtained through fraud, misrepresentation, or by any other unlawful means
- When the officer knows or has reason to believe20 that you are not eligible for approved status because of changed circumstances or clear error.
The return of petition is accomplished using form DS-3096, which is returned to NVC unless an approved I-130 has been sent directly to the overseas USCIS regional office21.
Consular officers must consider the following three factors when revoking a petition:
- There must be substantial evidence supporting the reasons to return the petitions that are not considered by DHS.
- The factual and concrete reasons should be mentioned clearly in the memo supporting the petition return and recommending revocation.
<- The applicant must be given as many details as possible about the reasons for the denial of a visa and the return of the petition in writing.
Returned petitions to USCIS are forwarded to the NVC by the consular post. When USCIS reaffirms the approval, the consul has no further information to provide to support its position, then the consul will process it accordingly22. In the case that the consular officer disagrees with USCIS’s determination on the validity of the petition, it should be sent to the department of state for review23
What are your rights and things to be aware of as an applicant in case of refusal of petition?
- Right to reconsideration: Applicants are entitled to know the legal basis for the decision and written explanation on the grounds of ineligibility. Nonetheless, if the applicant provides additional evidence to overcome the ground of ineligibility, then the case shall be reconsidered24.
- Advisory opinion- The applicant may receive advice on a legal or factual issue regarding the ineligibility from Visa advisory opinion division25.
- Judicial review- While the status of consular non-reviewability is unclear. In the case of the American acad of religion vs. Napolitano, it has been argued that a district court may consider an organization's first amendment claim despite consular non-reviewability. Wherein Allen v. Milas, the doctrine of consular non-reviewability is not a question of jurisdiction, but rather a judicially imposed restriction on the consent of federal courts to intervene in consular decisions; thus, the APA is not applicable, and only constitutional claims can be pursued.
- Waivers: Applicant can apply for waivers once he/she has been refused. The waivers are available with certain restrictions. USCIS has a pre-adjudication process in place for waiver of 3-10 years bar for immediate relatives. Please note consul can only forward the case to DHS for a decision and can’t make any recommendation on the waiver.
- Enter U.S with a valid immigrant visa: If your visa is set to expire soon, the consular officer may issue a replacement visa in the following circumstances. The consular office determines whether the original issuing office knows of any reason why a new visa shouldn't be issued before issuing the replacement issue26.
- You could not use the visa during its validity due to reasons beyond your control
- If the visa is issued during the same fiscal year or in the following year if an Immediate Relative Immigrant Visas and the visa was recaptured.
- In the case of preference or diversity immigrant, if the number has not been returned to the department of states.
Endnotes
1. INA § § 221-22, 8 USC § § 1201-02; 9 FAM 504.2-2(E), 504.4-4(A)
2. 9 FAM 504.4-2
3. INA § 202(a)(1)(b) [8 USC § 1152(a)(1)(B)]
4. 8 CFR § 204.2(c)(3)(i), (g)(3), (h)(2), (n), Cable, DOS 07-State-170938(Dec. 28, 2007), AILA Doc. No. 08080961
5. 9 FAM 504.1-3, 504.4-4(A)
6. 9 FAM 504.4-4(F), 504.4-4(B)
7. INA § 213A [8 USC § 1183a]
8. 9 FAM 504.408(A)-(B)
9. 22 CFR § 42.61(a)
10. 9 FAM 504.4-8(D)
11. 9 FAM 504.4-8(D)(c)(4)
12. INA § 212(a)(9)(B)
13. 22 CFR § 42.67(c)(2)
14. 9 F.A.M 504.11-2(A)
15. Arthur v. Miller, 368 f. Supp.3d 527, 556-58(E.D.N.Y 2019)
16. INA § 203(g); 9 FAM 504.13.2
17. 9 FAM 302.3-9(B)(2)(b)
18. 9 FAM 504, 13-2(A)(1)(b)(4)
19. 9 FAM 302.3-9(C); 9 FAM 504. 13-3(A)(a)
20. FAM 504.2-8(A)(2)
21. 9 FAM 504.2-8(B)(2)(a)
22. 9 FAM 504.2-8(C)(1)
23. 9 FAM 504.2-8(C)(1)(1)
24. 22 CFR § 42.81(e)
25. 22 CFR § 41.121(d)
26. 22 CFR § 42.74