In many cases where a noncitizen is applying for a green card through consular processing, the noncitizen may need to complete the application by applying for an immigrant visa through the Department of State. This application process is called consular processing.
First Step in obtaining a green card through consular processing-Filing an Immigrant Petition or Department of Labor, Labor Certification Application.
The first step in obtaining a green card through consular processing is to have the qualifying petitioner submit the initial green card petition with the United States Citizenship and Immigration Service also known as USCIS. For green cards based on a family relationship, the petition to be processed by USCIS is known as the I-130 petition, while the employment-based petition is known as an I-140 petition.
All family based green card through consular processing cases require a qualifying family member to file an I-130 petition. For family-based green card through consular processing cases, qualifying petitioners include U.S. Citizen or Legal Permanent Resident Spouses, U.S. Citizen or Legal Permanent Resident Parents, U.S. Citizen Siblings and U.S. Citizen sons or daughters aged 21 years or older.
In employment-based green card through consular processing cases, a petitioner can be any employer, but the main requirement for most employment-based green card through consular processing cases is for an employer to demonstrate that there are not enough qualifying employees for the position that the noncitizen is expected to fill. Therefore, before an employer file the employment-based green card through consular processing petition form, I-140 with USCIS, most employment categories will require the employer to undergo a recruiting process to able to obtain what is known as a labor certification from the Department of Labor.
Note that there are employment-based categories for related employment positions that will not require this recruitment process or even a petitioning employer where the noncitizen can self-petition. These cases exist under the EB-2 National Interest Waiver category where the noncitizen can demonstrate possessing an advanced degree or expertise significantly above the ordinary in the fields of science, art or business, or the EB-1 category where noncitizens can demonstrate an extraordinary ability in the sciences, arts, education, business, or athletics through national or international acclaim or recognition.
It is important to understand that although agencies such as USCIS, the Department of Labor and the Department of State are agencies within the U.S. government that work with each other in processing a green card application, they are still different agencies which require separate applications with each agency to eventually complete the goal of the noncitizen receiving the eventual green card through consular processing.
Second Step in obtaining a green card through consular processing-Applying for the Immigrant Visa
Upon processing and approval of the initial immigration petition with USCIS, USCIS notifies the Department of State of the approval. However, the Department of State will only proceed with the case when the filing date also known as the priority date on the initial immigration petition is current where the Department of State is processing immigrant visa applications with immigration petitions or labor certifications filed on or before the priority date published by the Department of State in what is called the Visa Bulletin. We discuss priority dates and the visa bulletin here. Once the priority date is current, or if the case has a petitioner who is an immediate relative, the case is then taken by a Department of State sub-office, known as the National Visa Center or the NVC. The NVC will then create a case for the noncitizen beneficiary where the noncitizen can proceed to apply for the immigrant visa using the NVC’s system known as the Consular Electronic Application Center (CEAC). Once the case is created in the CEAC, the noncitizen and petitioner will be instructed to pay the Immigrant visa application fees.
The immigrant visa is the travel authorization document that will be stamped in the beneficiary’s passport to allow the beneficiary to enter the United States to come and live in the United States as a legal permanent resident.
After the fees are paid, the applicant will be able to fill in the online application known as the DS-260 and upload what are known as the civil documents in support of the application to the CEAC system. Civil documents are typically biographical type documents such as birth certificates, marriage certificates and passports as well as required documents proving that a relationship is real in marriage-based family cases.
In all family-based green card through consular processing cases, the petitioning family member must also complete and upload USCIS form I-864 which reports the number of family members supported for a green card and the financial income of the petitioner or of a financial co-sponsor.
Once all required documents have been uploaded and the DS-260 has been completed, the NVC will begin to review the application and supporting documents to determine whether the application is documentarily complete to schedule the immigrant visa interview at the consulate post. Otherwise, if the application is considered to be deficient, the NVC will notify to provide additional information or correct documents.
If the application is determined to be complete and the interview date is scheduled, the case will then be sent from the NVC to the Consular Post for the review and final decision by a consular officer.
Final step in obtaining a green card through consular processing - Consular Interview
Before the interview the noncitizen beneficiary and any derivative applicant are required to schedule a medical appointment with an authorized physician in the country where the interview will take place. This exam must be with an embassy-approved doctor, also referred to as the Panel Physician
At the green card through consular processing interview, the beneficiary will be fingerprinted and is expected to bring certain documents such as the appointment letter, the DS-260 confirmation page, photographs and original or certified copy version of all civil documents submitted to the NVC.
The officer will then interview the beneficiary and decide whether to approve or deny the application. If denied, it may be that the officer requires additional information or documents before making a decision and will advise the beneficiary of the additional information or documents needed and how to provide them.
If an officer determines that the noncitizen is ineligible for the green card, the noncitizen should seek assistance of an immigration attorney to determine how the noncitizen may be ineligible and if it is possible to overcome the ineligibility. In most cases, if the officer determines a noncitizen is ineligible, but the ineligibility may be overcome, the officer will indicate to the noncitizen the possibility of overcoming the ineligibility and allow the noncitizen opportunity to overcome the ineligibility issue. Regardless, an attorney should be consulted before or after the interview to understand the ineligibility and plan for presenting a case to overcome the ineligibility.
Some cases may require further review known as administrative processing which could be based on many different reasons but is most typically caused by a security concern in the noncitizen’s background that requires more thorough security checks.
If the case is approved, the officer will provide instructions on when the Passport and Visa will be returned or ready for pickup after the interview.
Once the beneficiary receives the passport and visa, he must travel to the United States no later than the visa expiration date printed on the visa. The noncitizen must also pay a fee to have USCIS generate the actual green card to mail to the beneficiary after the beneficiary enters the United States with the immigrant visa.
Once the beneficiary enters the United States, he will be processed by Customs and Border Protection where upon entry into the United States, the beneficiary is now considered a lawful permanent resident or a green card holder. There will be no further steps to take other than to wait for the green card to arrive in the mail.