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Overview of Immigrant Consular Processing

Written by Henry J. Chang

General

Immigrant visa processing at a consulate abroad is the traditional method of acquiring lawful permanent residence, once an alien's petition for permanent residence has been approved by United States Citizen and Immigration Services ("USCIS"). It is the only option available to aliens who are outside the United States. The alternative method available to aliens already in the United States is called adjustment of status ("AOS"). AOS is discussed elsewhere at this web site.

Although many aliens who are already in the United States will opt for adjustment of status, some will be ineligible to adjust their status and will have no choice but to complete their cases through consular processing. Others will actually prefer consular processing over adjustment of status, especially where consular processing will take place faster than AOS (as is usually the case for Canadians).

Place of Application

According to 22 CFR §42.61(a), unless otherwise directed by the Department of State ("DOS"), an alien applying for an immigrant visa shall make application at the consular post that has jurisdiction over his or her place of residence. This is the normal place where the application should be made and the consular post cannot refuse to accept it. An alien physically present in the United States shall be considered to be a resident of the area of his or her last residence prior to entry into the United States.

Pursuant to Note 2.1 to §42.61 of Volume 9 of the Foreign Affairs Manual ("FAM"), consular officers shall also accept, when so directed by DOS, the immigrant visa case of any alien who is a citizen or a national of the consular district, regardless of the alien's last residence abroad. The assignment of an immigrant visa petition to a post by the National Visa Center ("NVC") in the United States will constitute such a direction by DOS.

In addition, according to 22 CFR §42.61(a) an alien physically present but having no residence there may still make an application at the consular post having jurisdiction over that area if the alien can establish that he or she will be able to remain in the area for the period required to process the application. In practice, NVC will only assign such cases to a post where the alien has some extended lawful status in the post's jurisdiction (i.e. employment authorization or perhaps student status but not visitor status).

In certain situations, the alien may be permitted to process with another consular office. However, such situations usually involve hardship. 9 FAM §42.61 N2.2-3 provides the following guidance regarding hardship:

  1. Hardship would not usually be considered to exist when an alien does not wish to return to the place of last foreign residence only because of inconvenience or expense.

  2. A brief, temporary absence from work would not generally be considered a hardship.

  3. Inability of an alien to travel long distances because of physical infirmity or advanced age would be considered to entail hardship.

  4. The presence of war, widespread civil disturbance, revolution, or other similar phenomena in an alien's country of last foreign residence would be evidence that hardship could result if the alien were required to return to that country.

  5. Aliens from countries with no visa issuing post could possibly entail hardship.

Homeless applicants residing in a third country are processed at the same immigrant visa processing post as are nationals of that country. Posts MUST accept for processing any immigrant visa applicant who is physically present in their consular district provided the applicant has the permission of the host government to remain there legally for a period sufficient to complete processing of the application. Generally, a "homeless" visa applicant is one who is a national of a country in which the United States has no consular representation or in which the political or security situation is tenuous or uncertain enough that the limited consular staff is not authorized to process immigrant visa applications. Nationals of the following countries are currently considered homeless:

Homeless Nationalities Selected Processing Posts
Afghanis Islamabad
Bosnians Zagreb
Iranians Abu Dhabi, Ankara, Naples, Istanbul, Vienna, Frankfurt (family-based applicants only)
Iraqis Amman, Casablanca
Lebanese Abu Dhabi, Damascus, Nicosia, Tel Aviv
Libyans Tunis
Somalis Nairobi, Dar es Salaam, Djibouti
Sudanese* Cairo (The designation of Cairo as the processing post for Sudanese is expected to be a temporary one, until such time as Embassy Khartoum resumes normal operation.)

Timing and Allocation of Visas

The timing of an immigrant visa depends on the availability of a visa number. Although immediate relatives and certain special immigrants are not subject to numerical limits, all other visa applicants are so limited. This includes the family-based and employment-based preference categories.

As a result of these numerical limitations, visa backlogs exist in most preference categories. In addition, country-specific limits that to nationals of certain countries (currently India, Mexico, and the Philippines) create even longer backlogs for these nationals. The priority dates of cases currently being processed in each category appears in the DOS Visa Bulletin.

Available visa numbers are allocated within each preference based on each alien's prority date. In family-based cases and employment-based preference categories where no individual labor certification needs to be filed, the alien's priority date will be the date that the approved preference petition was filed and received by USCIS. Where an individual labor certification must first be filed, its date of filing and acceptance by the Department of Labor is considered the alien's priority date.

Immigrant Visa Processing: The Packet System

Editor's Note: On December 11, 2001, the Department of State issued a cable to all diplomatic and consular posts indicating that it was changing the IV packet system. Packets 1, 2, 2a, and 3a no longer exist. Packet 3 has been renamed the "Instruction Package for Immigrant Visa Applicants". Packet 4 is referred to as the "Appointment Package for Immigrant Visa Applicants". Packet 4a is now referred to as the "Follow-Up Instruction Package for Immigrant Visa Applicants". However, the system is more or less still the same as under the old packet system, which is described below.

In April of 1994, DOS opened the NVC, a permanent immigrant visa processing facility in Portsmouth, NH. NVC processes all approved immigrant petitions that it receives from USCIS. NVC will retain the petitions until the cases are ready for adjudication by a consular officer abroad. When an applicant's case is about to become current, the petition is forwarded to the appropriate U.S. embassy or consulate overseas.

DOS implements a uniform visa processing system, which uses a series of packets that are sent to the visa applicant. These packets contain standardized letters, questionnaires, and information sheets. Packets 1 and 2 are informational and are not discussed here. Packets 3 and 4 actually prepare the alien's case for the final interview.

Instruction Package for Immigrant Visa Applicants [Packet 3]

Where the petition shows that the alien is exempt from numerical requirements or has a current priority date, NVC will mail Packet 3 to the alien. If the alien has a legal representative, NVC will send Packet 3 to the attorney.

NVC sends beneficiaries of inactive petitions (oversubscribed categories with non-current priority dates) Packet 3(a), which explains that a visa number is not yet available. Inactive petitions are held at NVC until the case becomes current, at which time NVC mails the alien Packet 3 if the alien is overseas. A PDF copy of the Canadian version of Packet III is available for download here.

In virtually all immediate relative cases and family-based preference cases and in certain employment-based cases (where a relative has a 5 percent or greater ownership interest in the business that filed the petition), NVC will also send Form I-864, Affidavit of Support, directly to the Petitioner or the Petitioner's legal representative. In such cases, Form I-864 is only method of satisfying the public charge ground of exclusion [INA §212(a)(4)].

The alien submits the requested supporting documentation along with Form DS-230 (and in appropriate cases, Form I-864). NVC will review the alien's documents and, if they appear to be in order, they will notify DOS that the alien's case is ready to proceed.

Appointment Package for Immigrant Visa Applicants [Packet 4]

Once NVC receives notice that DOS has allocated a immigrant visa number for the case, it will send Packet 4 to the alien. A PDF copy of the Canadian version of Packet 4 is available for download here.

Packet 4 does not assure the immigrant that a visa will be issued, since that determination will be made by the consular officer only after the medical examination is completed, the application and all supporting documents have been reviewed, and the alien has been interviewed. The alien is also cautioned that while every effort will be made to expedite the processing on the day of the appointment, the process will normally take several hours.

As part Packet 4, the Applicant will be required to obtain a medical examination from one of the approved panel physicians located in the foreign country. A list of panel physicians in Canada appears in the Canadian version of Packet 4 (mentioned above). The Applicant will bring the results of the medical examination to his or her visa appointment. Medical examinations are discussed in greater detail below.

Medical Examinations

Aliens seeking immigrant visas must undergo a medical examination by an approved panel physician to determine whether he or she is inadmissible. The purpose of the medical examination is to identify: (1) communicable diseases of public health significance; (2) lack of required vaccinations; (3) physical or mental disorders and behavior associated with the disorder that has passed, or may pose, a threat to the property, safety, or welfare of the alien or others; and (4) the condition of being a drug abuser or addict.

The medical examination includes a chest X-ray for tuberculosis and serological (blood) tests. The panel physician is responsible for the entire examination. The examination must include: (1) a medical history; (2) an immunization history (immigrant visa applicants only); (3) a physical examination; (4) a mental examination; (5) a full-size chest radiograph; (6) a serologic test for syphillis; (7) a serologic test for Human Immunodeficiency Virus ("HIV"); (8) a sputum smear examination; (9) administration of immunizations (see below); (10) report of the results of all required tests and consultations; (11) verification that the completed medical report forms are sent directly to the consular officer; and (12) verification that the person appearing for the medical examination is the person actually applying for the visa.

Neither a chest X-ray examination nor serologic testing for syphilis and HIV shall be required if the alien is under the age of 15 unless there is reason to suspect infection. A pregnant woman may choose to take a tuberculin skin test in lieu of a chest X-ray.

IIRIRA imposed an additional requirement that all aliens lawfully admitted to the United States for permanent residence be vaccinated against certain vaccine-preventable diseases. The language of INA §212(a)(1)(A)(ii) requires immigrants "to present documentation of having received vaccination against vaccine-preventable diseases."

The panel physician will determine whether vaccinations are necessary at the time of the examination. Vaccinations currently required are as follows: (1) mumps; (2) measles; (3) rubella; (4) polio; (5) tetanus and diphtheria toxoids; (6) pertussis; (7) influenza type B; (8) hepatitis type B; (9) varicella; and (10) pneumoccocal. If vaccinations are required, the panel physician can administer them or recommend a waiver (if available and appropriate).

The examining physician provides a sealed medical examination to the alien, which he or she brings to the visa appointment. Medical examinations in connection with immigrant visa applications are valid for one year.

Inability to Attend Interview

If the alien is unable to attend the schedule interview, the consulate will usually grant a request to delay the visa appointment. However, if the alien fails to apply for an immigrant visa within one year after the Packet 4 letter is mailed, the consulate will cancel the applicant's visa number registration and the petition will be revoked. If this occurs, the alien can still have the visa registration and petition reinstated within two years following the date of notification of the availability of such visa, if he or she establishes that the default was due to circumstances beyond the alien's control.

Visa Interview

Every applicant must be interviewed except that the personal appearance of a child under the age of 14 may be waived. During the visa interview, the consular officer examines the documentation and asks any questions that he or she feels are relevant to the determination of the alien's admissibility. If the alien is eligible for an immigrant visa, Form DS-230 Part II is signed and sworn to before the consul at the time of the interview. The alien must also pay the visa application fee and visa issuance fee at the time of the interview.

The visa application (Form DS-230 Parts I and II), the supporting documents, and Form DS-155A (Immigrant Visa and Alien Registration - completed by the consular officer), and the alien's signed photograph, becomes the "immigrant visa". This package is submitted to United States Customs & Border Protection ("USCBP") at the port of entry or pre-flight inspection when the alien applies for admission as a permanent resident. If admitted into the United States, USCBP will stamp the alien's passport with a temporary Form I-551 (i.e. green card), which will evidence the alien's lawful permanent resident status until his or her permanent Form I-551 is available.

Pursuant to INA §221(c), an immigrant visa is valid for a maximum period of six months. If the alien does not use the immigrant visa before it expires, it may be replaced under the original number during the fiscal year in which the original visa was issued if he or she establishes to the satisfaction of the consular officer that he was unable to use the original immigrant visa during the period of its validity because of reasons beyond his control and for which he was not responsible. If the alien qualifies for a new immigrant visa, it will only be issued after he or she again pays the statutory fees for an application and an immigrant visa.

Any visa issued to a child lawfully adopted by a United States citizen and spouse while such citizen is serving abroad in the United States Armed Forces, or is employed abroad by the United States Government, or is temporarily abroad on business, shall be valid until such time, for a period not to exceed three years, as the adoptive citizen parent returns to the United States in due course of his service, employment, or business.

Visa Refusal

There are no exceptions to the rule that once a visa application has been properly completed and executed before a consular officer a visa must be either issued or refused. Accordingly, any alien to whom a visa is not issued by the end of the working day on which the application is made, or by the end of the next working day if it is normal post procedure to issue visas to some or all applicants the following day, must be found ineligible and refused.

Where an alien is ineligible under a ground of exclusion for which a waiver is available, he or she will need to apply for an immigrant waiver before an immigrant visa can be issued. Immigrant waivers are different from nonimmigrant waivers granted under INA §212(d)(3). Immigrant waivers are available for some grounds of exclusion. Where applicable, immigrant waivers are discussed in the exclusion section of this web site.

As long as the alien is still entitled to visa status, reconsideration may be given to the case at any time. A refused alien does not have to pay a new application fee if evidence is presented overcoming the ground of ineligibility within 1 year of the date of refusal. However, if more than 1 year has elapsed a new application and fee must be taken prior to the approval of the case and the issuance of a visa.


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