Written by attorney Christopher Michael Pogue

Consular Processing for United States Legal Permanent Residence (Green Card)

Note: This legal guide is for informational use only. One should not act or refrain to act solely based on the information provided. No attorney client relationship is created unless a retainer is signed by the attorney and the client.

Individuals with approved, underlying family or employment based petitions, as well as current visa numbers from their countries of origin, may obtain immigrant visas through one of two processes: 1) consular processing or 2) adjustment of status.

The type of process required to obtain an immigrant visa depends on where the individual is located. Consular processing occurs when an individual applies for an immigrant visa at the U.S. consulate in their country of origin, while an adjustment of status occurs through U.S. Citizenship and Immigration Services (USCIS) for applicants located in the United States. Applicants present in the United States may also choose consular processing; however, they thereby relinquish their right to employment authorization and advance parole (travel authorization) during the process. They also must return to their country of origin for a medical exam and interview.

Consular processing involves the following three procedures: Once an applicant has specifically notified USCIS of his desire for consular processing, USCIS sends the applicant's approved immigrant petition ( I-797) to the National Visa Center (NVC). Wait times for available visas vary. Depending on the visa category and country of birth of the applicant, it may require months or even years for a visa number to become available. The NVC then sends a packet with forms (Packet 3) to the applicant, which the applicant or applicant's attorney completes and sends back to the NVC for processing. After 6-8 weeks of processing, the NVC requests a visa number from the State Department Visa Office. This requests takes approximately 2-4 weeks to process. After a variable number of months, the applicant receives a visa number and the applicant attends a visa processing appointment scheduled by the NVC. This appointment must take place at the U.S. consulate abroad.

Consular processing is often faster than an adjustment of status, and it also allows applicants in the United States to enter and exit the country freely, as an adjustment of status requires that the applicant remain in the United States during the filing process unless advance parole is approved for the applicant. Those individuals who entered the United States without inspection are ineligible to adjust their status in the United States and must consular process their immigrant visa applications; however, leaving the United States after a period of unlawful presence may trigger a three or ten year bar to admissibility for the individual. It is important that a qualified and knowledgeable immigration attorney be contacted by any individual who may face a bar due to unlawful presence prior to an attempt to consular process an immigrant visa. The three and ten year bars are waivable with an I-601 hardship waiver, provided a qualifying relative and the requisite hardship exist.

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