FAQs
Consular Processing
What is Consular Processing (CP)?
CP is a process by which an individual applies with the American Consulate or Embassy in their home country or country of last permanent residence to receive an Immigrant Visa (“green card”). This is the final step in the process to achieve lawful permanent residence in the U.S. It is an alternative to applying for Adjustment of Status (AOS) in the United States.
What are the requirements to file for CP?
The individual must be immediately eligible to receive an immigrant visa, which means they must have an approved family-based petition (I-130) or employment-based petition (I-140) set up for CP. Also, the priority date must be current. If the visa quota is backlogged, the State Department will simply hold the approved petition until the priority date becomes current and then complete processing. Current priority dates are printed in the State Department's Visa Bulletin every month. A link to the Visa Bulletin is available at www.larrabee.com/links.aspx. Additionally, the applicant must be admissible to the U.S. or be eligible for a waiver.
What if I do have a problem in my background? Is my case hopeless?
Not necessarily. There are some waivers in the law but they are limited and cannot be discussed generally here. Make sure to fully disclose everything to your attorney so proper legal advice can be obtained and appropriate strategies considered. Sometimes the problem can be overcome by not seeking CP but instead, processing the final stages through AOS where you have more rights and protection.
What are the advantages of CP?The primary advantage of CP is speed. The time frame for CP is generally less than with AOS. Additionally, if the dependents (spouse and children) of the primary applicant reside outside of the U.S., it is often advantageous for the entire family to process their immigrant visa applications together at the American consulate or embassy. Otherwise, the family must wait for the primary applicant to complete AOS before they can be granted their immigrant visas. This can result in significant delays for the dependents. Another advantage of CP is that the filing fees are cheaper than for AOS.
What are the disadvantages of pursuing CP?
CP can be more burdensome to complete than AOS. The CP process is completed through the U.S. Department of State (DOS), not the U.S. Citizenship and Immigration Services (USCIS). The potential disadvantages in pursuing CP can include: 1) Required to travel to one’s home country on short notice in order to complete an interview at the American consulate or embassy; 2) Need for police clearances from each country lived in for six months or more since turning 16 years of age (for a limited number of countries this is waived); 3) Completion of a medical exam in the home country and potential delays encountered in waiting for those results to be transmitted to the consulate; 4) No right to legal counsel and limited opportunity to challenge a denial; 5) CP does not stop the limitation on the expiration of temporary visas; 6) independent employment authorization cannot be obtained while processing through CP.
CP requires more effort on the part of the individual and family and entails a greater expense and inconvenience if travel is required to attend the interview. Please note, however, that our office has processed hundreds of individuals through CP without a problem and a number of clients continue to view CP as viable option to completing green card processing. Moreover, some individuals because of particular circumstances may not be eligible for AOS and therefore will need to pursue CP.
Can my family go through CP with me?
Yes, your dependents, which under immigration law include the spouse and unmarried children under 21 years of age, may immigrate through CP assuming they do not have any of the problems mentioned above. It is critical that any child approaching 21 be identified so special efforts to complete the CP can be undertaken. If the child turns 21 before the CP is finished, that child in many cases may not immigrate with the rest of the family. Some children may still immigrate as dependents over 21 years of age if they qualify under the Child Status Protection Act (CSPA). The CSPA, signed into law on August 6, 2002, permits applicants for certain benefits to retain classification as a "child" even if he/she has reached the age of 21 and is unmarried. The process to determine whether an individual will benefit from CSPA is made on a case by case basis. Therefore it is very important that you notify your Attorney if you have any children close to the age 21.
Can I do both CP and AOS at the same time?
Generally the answer is no, although there is no legal prohibition against it in the law or regulations. Current CIS/DOS policy does not allow this and you will be asked to withdraw one.
What if my I-140 Immigrant Visa Petition was set up for AOS and now I want to go CP?
USCIS policy requires you to file Form I-824 with USCIS and request them to send the approved petition to the NVC so CP processing may begin. Processing times for the I-824 application vary depending on the current workload of the USCIS Service Center with jurisdiction over the case.
Can my spouse get employment authorization while we process through CP?
No. Employment authorization is only available as an adjunct to an AOS application.
Can I continue to travel while processing CP?
Yes. CP has no impact on one's current immigration status, and thus one can continue to do whatever is permitted under their present status, assuming they are in the U.S. Please consult with an attorney prior to any international travel to review any issues that may arise with such travel, such as having to obtain a visa stamp to re-enter the U.S.
My H-1B or L-1 visa limit is approaching. If I am processing through CP can I continue to be in the U.S. in my temporary visa status after my eligibility runs out?
No. Processing through CP has no impact on the time limits on visas such as H-1B and L-1. If the person reaches the maximum time allowed under their visa they must leave the U.S. even if processing is ongoing for an immigrant visa. Only filing for AOS allows a person to remain in the U.S. after their time limit is reached on their temporary visa. However, in certain circumstances a person may be eligible for H extensions past the six-year maximum. Please discuss this with an attorney.
Which should I choose?
This is always the hardest question. We view it as a personal choice, however there are cases where an individual may be legally prohibited from or will suffer adverse consequences by choosing CP or AOS and as such, will technically not have a choice of which process to choose. The end results are the same. Individuals weigh their options depending on their respective situation and thus there is no "right" answer.
How do I file for CP?
When the petitioner (e.g., a family member or employer) files an Immigrant Visa Petition on behalf of an individual, the petitioner designates either AOS or CP upon approval of the petition. If CP is designated, the USCIS will send the approved petition to the National Visa Center (NVC) in New Hampshire. The NVC will open a CP case and begin the process. However, the individual, if in the U.S. may always opt to seek AOS if they meet the requirements of AOS (see FAQ on Adjustment of Status). If AOS is designated on the Immigrant Visa Petition, a special process is needed to change to CP (discussed below).
How long does it take to complete CP?
This process varies depending on the workload at the consulate and the time of year. Some cases can be completed in as little as 4 months while others can take as long as 12 months (or longer) to complete.
Initially, the CIS must first approve the Immigrant Visa Petition and then forward it to the NVC. This can take time and has nothing to do with how long actual CP will take. Once the NVC has the case, a series of events will happen. First, they open a case file for the individual, complete certain data entry, determine the correct consular post to handle the case, and then issue the fee bill for the Immigrant Visa Application (and Affidavit of Support for family based cases), which must be paid to NVC in order to initiate the case.
How do I pay the Immigrant Visa Processing fees to NVC?
Individuals have the choice between submitting payment online via the Consular Electronic Application Center's Immigrant Visa Invoice Payment Center or by mail.
In order to pay online, the applicant will need a checking or savings account held at a United States financial institution. If paying by mail, the applicant will need to obtain a cashier’s check or money order drawn on a U.S. financial institution and made payable to “Department of State.”
What happens after I pay the Immigrant Visa Processing fees?
After the fees are submitted, we prepare the immigrant visa applications (Form DS-230) for the applicant and any accompanying family members and the applicant as to what supporting documentation will be needed. Once the applicant has obtained all of the required documentation, we will submit the immigrant visa application and supporting documentation to the National Visa Center.
The NVC will then complete all necessary pre-processing of the applicant’s immigrant visa application. The applicant may be requested to provide additional information if the applicant has incomplete (or missing) documents.
Will the NVC conduct background checks?
Yes. After we submit the immigrant visa application and supporting documentation, NVC begins the necessary steps to complete background checks from various government agencies. The purpose is to ensure that there is no record of any criminal, immoral, or subversive conduct, and that no prior immigration-related violations have occurred. These checks are beyond the Consulate's and the NVC’s control since they are handled by outside agencies. As such, it is difficult to predict how long the background checks will take.
How will I know when my appointment will be scheduled?
For all embassies and consulates (except, the Consulate General in Guangzhou, China) the NVC will send an appointment letter to all interested parties notifying them of the date, time, and location of the interview, and instructions on obtaining a medical examination; and will forward the petition to the appropriate embassy/consulate. The Consulate General in Guangzhou, China will send appointment letters for cases assigned to it. We are notified of the Immigrant Visa Appointment by receipt of the “Appointment Package for Immigrant Visa Applicants" (formerly “Packet 4”). The Appointment Package contains Form DS-230, Part II, which is a sworn statement covering various visa eligibility factors, and additional information about medical exams and the logistics of the visa interview at that particular post. Notices are generally received approximately one month prior to the interview date. When we receive notice of the interview date, our office will prepare the Appointment Package materials for the applicant to take to the interview abroad. The individual will then travel to the consular post, have a medical examination, interview and if successful, be issued an immigrant visa valid for one entry within six months. The Immigrant Visa will usually be placed in each applicant’s passport and endorsed in the same manner as a non-immigrant visa.
Can I request a specific interview date at the consulate?
While we can note requests for interviews during certain time frames, most Consulates cannot accommodate such requests. Please note that it is very difficult to re-schedule an interview date at a Consulate. Furthermore, requesting re-scheduling may significantly delay your case. Barring a true emergency, it is best to take the initial interview date given to you by the Consulate.
Must my minor children attend the interview?
Generally, each member of the family applying for a visa must attend the interview. The appearance of children under 14 may be waived, but the Consular Officer prior to the interview must grant permission.
When my CP is approved, what happens?
Well, first, congratulations. Following your receipt of the Immigrant Visa package, your family members must enter the United States within 6 months. Upon your return to the U.S., you will be a lawful permanent resident of the United States. The CBP at the border (land border or airport) will place a temporary stamp in your passport which establishes your new status and which is valid for travel and employment upon your arrival at the U.S. land border or airport where you present your Immigrant Visa. The USCIS will then order the actual alien registration card (“green card”), which is a convenient, laminated card. By law, you must carry the card with you at all times. There is a further delay in getting the physical card, but your status is already secure.
If an Immigrant Visa is not granted at the interview, can I return to the United States, using a valid Nonimmigrant Visa?
It depends on the reason for the denial.
If there is simply a missing document, the consular officer will not deny the case; rather, he or she will ask you to obtain the document, and return to the consulate in the next few days, so the immigrant visa can be issued.
There are various grounds for exclusion from the United States. If an immigrant visa is denied based on one of these grounds (i.e., fraud or misrepresentation to gain an immigration benefit; criminal conviction; etc.), an applicant will not be allowed to return to the United States in any status, immigrant or nonimmigrant. These grounds of exclusion are relevant any time you seek to enter the United States; this is not specific to the immigrant visa process.
