§§ 221-224, of the Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. § 1101-1524.
(c) 1999 VIKRAM BADRINATH, P.C. All rights reserved.
Generally, any alien who desires to immigrate to the United States and reside permanently must have issued lawful permanent resident status. This status is normally conferred through either issuance of an immigrant visa by a consular officer at a U.S. Consulate abroad ("consular processing"), or through the U.S. Immigration and Naturalization Service ("adjustment of status"). If an alien is already present in the United States, seeking to adjust his status is generally the preferred method since the "adjustment of status" applicant whose case is denied may challenge such denial through the administrative and/or judicial appellate processes. Denial of a visa a U.S. Consular post, however, is essentially a non-reviewable, non appealable order; there are limited exceptions that may permit review. In addition, Visa processing at a consular post abroad also involves the additional time and expense of traveling overseas and may further prolong the separation between family members. Whilst, the Adjustment of Status applicant may reside in the United States, obtain employment authorization, and a travel document until his case is processed, reviewed, and completed by the U.S. INS.
In order to apply for consular proceesing or adjustment of status, an applicant for an immigrant visa must establish entitlement under one of the classifications as defined in the Immigration and Nationality Act. An alien is eligible to receive an immigrant visa if: (1) the alien is the beneficiary of an approved visa petition granting family-based immediate relative or preference classification, or employment-based preference classification; (2) derivative family members, spouses, and children of preference aliens also qualify if accompanying or following to join; (3) the alien is entitled to special immigrant status pursuant to INA § 101(a)(27); or (4) the alien qualifies for a visa under special legislation (such as the diversity visa ("lottery") category.
Once an immigrant visa petition has been approved and sent to the National Visa Center in Portsmouth, New Hampshire, a record is created and forwarded to the appropriate U.S. Consulate nearest the applicant's domicile. The record indicates the case number, summary information, and the preferential order in which consideration will be given to the applicant (i.e., priority date).
Consequently, after an applicant's visa number is immediate available (e.g., "priority date" is current), he may begin the necessary steps for final processing of his immigrant visa. These steps include fingerprint clearance, medical examination and review, birth/marriage/divorce certificates, police certificates, court/prison records, photographs, evidence of financial support, tax reporting information, translations, etc, all in an effort to determine admissibility to the United States. If an immigrant visa application is ultimately approved, an alien will be provided with appropriate documentation ("immigrant registration and visa") to enter the United States as a lawful permanent resident.
Aliens who are ineligible to "adjust status" [See Adjustment of Status] must have an immigrant visa to apply for entry into the United States as a lawful permanent resident. Consular Processing is the process by which such an alien applies for an immigrant visa at the United States Consulate in his or her home country.
The following are general requirements for obtaining an immigrant visa via the Consular process:
The first step requires that an applicant have an approved immigrant visa petition. This requires that a Petitioner file the appropriate form (I-130, I-140, I-360) with the U.S. INS, inside the United States. Thereafter, once the petition is approved and the "priority date" current, the Petitioner must request that the approved petition be sent to the appropriate Consular Post; this request is made on Form I-824 (Request for Action on an Approved Petition). The U.S. INS will also forward the approved petition (I-797C indicating approval for Form I-130, I-140, I-360) to the National Visa Center ("NVC"). The NVC will then send "Packet 3" to the intending immigrant. "Packet 3" includes instructions and documents to be completed by the applicant such as OF-169 (instructions and checklist of documents), OF-230 Part I (biographical section of the immigrant visa application form) and U.S. INS Form I-864 (Affidavits of Support to be completed by certain designated sponsors to establish that the intending immigrant will not become a public charge once inside the United States).
When the intending immigrant has completed the documentation (may include OF-169, OF-230 Part II), he must mail the completed appplications to the Consulate. When the applicant's case is received and the priority date is current, the Consulate will send the intending immigrant "Packet 4," notifying him or her of an interview date and other requirements, including fingerprinting, certified physicians in the area who can complete the required medical examination, completion of OF-230 Part II, and submission of IRS Form 9003 regarding any tax history in the United States. Upon approval and entry to the United States, a U.S. INS immigration officer or inspector will place a lawful permanent resident stamp (I-551) in the aliens passport indicating the date and port of entry for admission as a lawful permanent resident of the United States.
The State Department Web Page provides additional detailed processing information for immigrant visas.
For more information about Consular Processing, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed an attorney.