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Q & A: Consular Processing

Consular Processing – Understanding the Process

Foreign nationals based overseas can process their immigrant visas at consular posts in their home countries. Individuals who violated their status in any way and are not eligible for adjustment of status under any of the enumerated exemptions must return to their home country for consular processing.

What are the Advantages to Consular Processing?

Unauthorized employment bars adjustment of status.  Section 245(c) of the Immigration and Nationality Act says that adjustment of status in the United States is not available to an alien who ?accepts unauthorized employment prior to filing an application for adjustment of status … or who has failed … to maintain continuously a lawful status since entry into the United States …?  This makes you statutorily ineligible for the process of ?adjustment?; it means that you are ineligible to obtain your green card in the United States.  

But this is not a problem when you obtain your immigrant visa through a consular office outside the United States.  The Consul applies a different set of laws and there is no problem with unauthorized employment when you obtain your visa through consular processing.  Furthermore, the Immigration and Naturalization Service (INS) has the discretion whether or not to grant adjustment of status.  On the other hand, the American consul must issue the visa unless he or she finds that you are disqualified.  This means that if you do not have AIDS or tuberculosis, if you are not a user or abuser of narcotics, or a prostitute or a communist, if you are not a smuggler or a terrorist, and if you have all the right papers then you will obtain the visa.  The consuls see their jobs as issuing visas.  The INS officers see their jobs as enforcing the immigration laws.  Granting of benefits is a low priority to immigration officers. 

The biggest advantage of consular processing is timing. Traditionally, immigrant visa processing at a U.S. consulate may save 3 to 18 months depending upon the U.S. consulate and the INS office that would have jurisdiction over the adjustment of status application.

What are the Disadvantages/potential problems to Consular Processing?

No appeals process. One of the major differences between consular processing and adjustment of status is that there is no appeals process if your case is denied by a consular officer.  An appeals process and a process allowing for the reopening of denied and closed cases both exist in the adjustment of status process along with attorney representation in the appeal and in the initial green card interview at the local INS office.

Leaving the U.S. for consular processing could trigger the Three and Ten Year Bars to Re-entering the U.S.   Under the 1996 Immigration Act, individuals who overstayed their nonimmigrant visas by more than 180 days would be barred from reentering the United States for three years. Individuals who overstayed their nonimmigrant visas for more than one year would be barred from reentering the United States for 10 years. There are very limited exceptions for overcoming these bars.

The above information is general in nature and is not intended to be considered or relied upon as legal advice.  To determine whether consular processing or adjustment of status is the best process for your case, consult an attorney. 

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