Seguritan US Immigration Articles

Immigrant Visa Processing at a U.S. Consulate Abroad

Many foreign nationals become lawful permanent residents by applying for an immigrant visa at a U.S. consulate abroad. This pathway to a green card is called “consular processing” and it requires a personal interview before a consular officer before the applicant can obtain an immigrant visa.

Consular processing is available in both family-based and employment-based immigration cases. Generally, petitioners filing I-130 and I-140 petitions will choose whether visa processing will take place in the United States through what is called adjustment of status, or at a U.S. consulate abroad. If consular processing is chosen, the USCIS will forward the approved I-130 or I-140 petition to the National Visa Center.

Each approved immigrant visa petition will be assigned an NVC case number. The first three letters of the case number designate the U.S. consulate, followed by the year the petition was received by the NVC. The case number applies to the entire family but each family member must submit an individual immigrant visa application and civil documents and pay the required fees.

The NVC then sends a fee bill to the visa applicant or to the attorney of record, if any. For family-based cases, there is a separate fee for the review of the Form I-864 Affidavit of Support. Fees may be paid online through electronic fund transfer or by mail with a cashier’s check or money order.

After fees are paid, the NVC will send visa application instructions to the applicant. Documents to be submitted generally include the Form DS-230 Parts I and II, copy of the passport, two passport-style photos, original or certified copy of birth certificate, and an original or certified copy of a police certificate from each country where the applicant resided for 6 months or longer after age 16.

In family-based cases, the applicant must also submit a Form I-864 signed by the sponsor, along with supporting documents such as tax returns, W-2 form and a letter of employment. This requirement ensures that the applicant will not become a public charge. In employment-based cases, the applicant should submit a letter from the petitioning employer confirming the employment.

When all required documents have been submitted, the NVC will schedule the interview and send instructions to the applicant. The instructions will tell the applicant if any documents must be brought to the appointment, which will depend on the type of the application and on the circumstances of the applicant. The notice will also have a list of physicians who may conduct the required physical examination which will screen for relevant medical conditions. After the appointment is scheduled and instructions are sent, the file is transferred from the NVC to the consulate.

Visa applicants must appear personally at the interview. They should be prepared to respond to questions pertaining to their eligibility for the visa, including questions on prior U.S. immigration history and any criminal history. Marriage-based visa applicants should expect to be asked about their marital relationship. Employment-based applicants must be prepared to discuss their work history and answer questions regarding the proposed employment. The types of questions will vary from one applicant to another, especially since consular officers have wide discretion when it comes to questions to be asked.

If the applicant is found to be inadmissible to the U.S. and therefore ineligible for an immigrant visa, he/she may be able to apply for a waiver of the ground/s of inadmissibility. Many visa applicants get denied because of prior unlawful presence, misrepresentation, or criminal convictions.

If the visa application is approved, the consular officer issues the visa and stamps the applicant’s passport. The visa will be valid for travel to the U.S. within 6 months of issuance. The applicant will also be given a sealed envelope which he/she must give the officer at the port of entry. Finally, the new immigrant’s green card will be produced by the USCIS and mailed to the address provided in the visa application.

Opting-Out to Prevent Longer Wait for Visa

Because of the visa backlog, it is common for a lawful permanent resident (LPR) parent, usually after living in the U.S. for five years, to become a naturalized citizen while a child waits for a visa on the basis of an approved second preference petition.

Under the Child Status Protection Act (CSPA), when a permanent resident parent naturalizes the beneficiary in an F2B petition (unmarried sons and daughters of LPRs) automatically converts to the F1 (unmarried sons and daughters of U.S. citizens) category upon the naturalization of the parent.

The automatic conversion is good if you’re a national of any country – except for the Philippines. Based on the latest visa bulletin, for other countries a conversion from F2B to F1 is advantageous because the waiting time would be cut short by over one year (about 4 months for Mexico).

But for the Philippines, the cut-off date for F2B beneficiaries is September 1, 2001, while for F1 it is April 15, 1997. In other words, for Philippine nationals the conversion actually adds more than 4 years to the wait since the F1 category is more backlogged than F2B.

Section 6 of the CSPA remedies this inequity by allowing the F2B beneficiary to “opt-out” of the conversion by electing to remain an F2B beneficiary. This is done through a written request to the officer in charge of the appropriate U.S. embassy, who then issues a decision and sends it to the beneficiary and the Department of State’s visa issuance unit.

If the opt-out request is approved, the beneficiary’s eligibility will be determined as if the parent had never naturalized and the beneficiary will remain in F2B.

To illustrate, let’s say X is the 33-year old son of a Filipino mother who recently became a naturalized U.S. citizen. On August 30, 2001, the mother filed an I-130 petition on X’s behalf when X was only 23 years old. The F2B priority date is already current, but since his mother recently naturalized, X automatically moved to the F1 category where the waiting time is longer by over 4 years compared to F2B. X can avoid the backlog in F1 by opting out of the conversion by sending a formal request to the USCIS in Manila.

This provision of the CSPA applies retroactively, that is, even to those F2B preference petitions filed before the law was passed on August 6, 2002, and regardless of the age of the beneficiary. Note that the opting-out can be done even after the conversion takes place because the law specifically allows a conversion to be revoked.

It used to be that only beneficiaries of petitions initially filed in F2B could benefit from opting out, and not those who started out in F2A and later moved to F2B when they turned 21 years old. This interpretation resulted in older brothers and sisters being able to immigrate under F2B much earlier than their younger siblings who had to wait longer under F1.

To illustrate, say X in the example above was under 21 when his mother filed the I-130. Since he started out in the F2A category and converted to the F1 category when his mother naturalized, under the old interpretation of Section 6 he could not opt out of the conversion. He would have to remain under F1 and wait until a visa becomes available.

Because of the unfairness that resulted, in 2006 the USCIS reevaluated its reading of Section 6 and later allowed it to be applied to all beneficiaries 21 years and over in the F2B category, regardless of whether they started out as F2A or F2B.

In the example above, this means that it does not matter if X was under 21 or over 21 at the time the I-130 was filed by his mother. If he turns 21 before his mother naturalizes, his petition would be automatically transferred to F1 category, but he can then opt-out if it is more beneficial to remain in F2B.

Scroll To Top