EMPLOYMENT BASED

The procedure of processing for permanent residence through an embassy or consulate abroad is a way to complete the final stage of the permanent residence process for a foreign national who is either residing outside of the U.S., or one who is residing in the U.S. and, for whatever reason cannot (or does not wish to) complete the final stage by processing an I-485 Application to Adjust Status to Permanent Residence. Since the process occurs outside of the U.S. and the individual must appear for an interview, there is no U.S. immigration status which the foreign national needs to maintain as with the Adjustment of Status process. However, this does not always mean that a foreign national who has been in the U.S. without valid status and who is eligible for an immigrant visa (through non-spouse family sponsorship or employer-sponsorship, for instance) can process for permanent residence by simply leaving the U.S. to process abroad. Often the three- or ten-year bars present a barrier to reentry.

Unlike the I-485 Application to Adjust Status to Permanent Residence, the consular process can never start until the Immigrant Petition (an I-140 Immigrant Visa Petition for employment-based cases, an I-130 Petition for Alien Relative for family-based cases, etc.) has already been approved. It is always a true “final stage” process, beginning after other necessary processes are complete. However, just as with the I-485 Application to Adjust Status to Permanent Residence, the consular process cannot be started until an immigrant visa number is immediately available for the case. See our FAQ on Preference Classes and Priority Dates.

While the US-based Application to Adjust Status to Permanent Residence is a U.S. Citizenship and Immigration Services process like the petition for the immigrant visa, consular processing abroad is instead a function of the U.S. Department of State. All USCIS petitions for an immigrant visa, such as the I-140 Immigrant Visa Petition or the I-130 Petition for Alien Relative, will ask for the address of the overseas post where the foreign national can consular process. This is most often the foreign national’s country of citizenship. If a preference for consular processing is indicated, upon approval of the immigrant petition the process is turned over to the Department of State’s National Visa Center, a centralized office located in the U.S. state of New Hampshire. This office will collect processing fees and provide instructions for the next stage. The exact process may vary somewhat depending upon which overseas U.S. embassy or consulate will be processing the application; some posts handle greater portions of the process directly. Once the fees are supplied and a completed consular processing application package is submitted, the package receives a basic review for completeness. If the materials are determined to be complete (or an inquiry from the National Visa Center for any missing information receives a response deemed adequate), an interview appointment is scheduled with the consular post or embassy. Again, procedure varies somewhat by consular post. The foreign national applicant(s) will be instructed to arrange an appointment to a local physician designated by the consulate or embassy in order to undergo a physical examination – the doctor’s appointment will normally take place shortly before the appointment, occasionally even the day of the appointment.

This is the stage where your immediate family members are more formally a part of the process, in that separate consular processing packages are filed for each family member (additional family members would have been mentioned on the immigrant petition form, but would not have needed to file anything directly). Here, the same forms and documents filed for the main applicant are also filed for these family members. A note on children over the age of 21: We cannot obtain permanent residence for children over the age of 21 based upon your application, except in certain specific circumstances where the child was under 21 when the I-140 was filed and the Application to Adjust Status has not been delayed by the unavailability of Immigrant Visa numbers.

You and family members must have birth certificates (each birth certificate must indicate full name, the full names of each parent, date of birth, and place of birth), marriage certificates and other relevant documents (any marriage certificates and divorce decrees for previous marriages, etc.) Police certificates for the foreign national’s current overseas country of residence as well as every country where the foreign national has lived for six months or more since turning 16 years of age are also required. The foreign national may also wish to obtain records of all vaccinations received to provide to a designated examining physician when the required medical exam is performed.

Consular processing is the only option available to foreign nationals who are outside of the United States. It is often used for situations where a non-spouse family member is the beneficiary of an approved immigrant petition; often in these cases, no nonimmigrant (temporary) visa is available to bring the foreign national to the U.S. while the case is pending. Since the option of Adjusting Status in the U.S. is normally only available to those who have maintained valid immigration status while in the U.S. – except for those who first entered legally and process a case based on marriage to a U.S. citizen – the great majority of those who have not maintained valid status in the U.S. can only process for permanent residence by exiting the U.S. and going through a consulate or embassy abroad as described above. However, in many cases even this may not be an option: the act of leaving the U.S. after 180 days or six months of unlawful presence in the U.S. will subject the foreign national to the Three or Ten-Year bars to readmission. So, these individuals can’t get a green card in the U.S., and if they leave to process through a post abroad they may not be able to re-enter for three or ten years unless they are eligible for a waiver. This severely limits the utility of consular processing for those who have already been in the U.S. without documentation. Consular processing can also be an attractive option when the processing time for adjustment of status is significantly longer than the processing time for processing through the consulate. There have been times in the past when Adjustment of Status processing times approached two years, while at most consular posts processing time remained at about six months. Many foreign nationals then chose the consular processing path as the quicker route to permanent residence. This option has become less attractive since concurrent filing of Adjustment of Status cases along with employment-based immigrant visa petitions has been permitted (assuming an immediately available immigrant visa), and since processing times for Adjustment of Status applications have declined.

The final-stage application is filed in order to obtain permanent residence status for a foreign national and possibly that foreign national’s eligible immediate family members/dependents. While the I-140 is intended to determine that there is a legal basis for granting permanent residence, the final stage is intended to make sure that there is no reason not to grant permanent residence. In other words, this last stage is meant to prove to the satisfaction of the U.S. government that there exists no ground for inadmissibility for a given foreign national – inadmissibility being a legal reason why an individual should be prohibited from obtaining U.S. permanent residence.

There are many different reasons why an individual may be found to be inadmissible. Possible grounds include criminal activity, issues with immigration status violations, issues concerning the foreign national’s financial ability to support him or herself in the U.S., health-related grounds and membership in prohibited organizations, among other things. Most grounds of inadmissibility we see among our clients pertain to prior immigration violations or criminal activity. It is entirely possible that someone with an inadmissibility issue may have a perfectly valid way of completing the first stage of the process (the person may be a well-qualified employee with a willing employer-sponsor and a clear way to gain approval of an Immigrant Visa Petition), but find themselves with no practical way to complete the final stage. Often, an individual with an insurmountable inadmissibility issue but with a willing employer-sponsor will ask “What if I marry a U.S. citizen?” Aside from the obvious illegality and immorality if done solely for immigration purposes, marriage to a U.S. citizen will in most cases only substitute one means of getting through the first stage (the immigrant visa) for another. It won’t have any impact on the foreign national’s inability to successfully complete the final stage. In other words, it won’t help at all.

It depends on the ground of inadmissibility involved. In some cases, waivers may be available depending not only upon the ground involved, but on other circumstances of the foreign national’s life. This is definitely an area where circumstances need to be examined carefully with an immigration attorney.

There are two possible ways that a foreign national may be able to complete the final stage to ensure that no ground for inadmissibility exists: by processing for Adjustment of Status here in the U.S., and by processing abroad through a U.S. Embassy or Consulate (“Consular Processing”) .