Consular Processing is the process through which a foreign national applies for an immigrant visa (commonly referred to as a green card), through an Embassy or consulate abroad.  Generally speaking, there are three groups of people who will consular process:

  1. Those who are already abroad;
  2. Those who are in the US and do not qualify for Adjustment of Status; and
  3. Those who are in the US and who prefer consular processing over Adjustment of Status.

Those Who Are Abroad:

If you are outside of the United States and you wish to apply for a green card, you’ll likely have to do so through consular processing.  This is true, even if you posses a United States visa.  Most visas do not allow for immigrant intent, meaning that it is against the terms of most visa types to enter the US with the intention of applying for a green card.

For example, your fiancé is in the US, and you have a tourist visa.  It would be against the terms of the B-2 tourist visa to enter the US as a tourist with the intention of applying for a green card.  A big caveat to this is that if you enter the US as a tourist, and then formulate the intention to stay AFTER you have entered, that is OK.

Two exceptions to this are H1b and L visas. H1b and L visas do allow for immigrant intent, so if you are abroad and have one of these visas, you can enter the US with the intention of applying for a green card.

However, many people do not have a US visa, or they have already formulated the intent to immigrate; in which case consular processing is the appropriate avenue for immigrating.

Those Who Are in the US, But Do Not Qualify for Adjustment of Status

Some people who are already in the United States do not qualify for Adjustment of Status (AOS), and thus must consular process.  To be eligible for AOS an applicant (1) must have been inspected and admitted, (2) have a visa number immediately available, and (3) be admissible.

If you entered the US without inspection or admission, and you do not qualify for Adjustment under §245(i), then you’ll likely have to apply for your green card through consular processing.

INA §245(i) means that a qualifying family member filed an I-130 on your behalf, prior to April 30, 2001.  If you are 245(i) you qualify for AOS even though you entered the US without inspection.

If you entered the US without inspection or admission, and you have been here more than 1 year, you will trigger the 10-year bar when you leave the US to attend your consular interview.

If you’d like to file for a green card, and your only ground of inadmissibility will be the 3 or 10 year bar, then you may be eligible to apply for the Provisional Waiver, which allows you to remain in the US while your Waiver is being decided.

Those Who Are in the US, But Do Not Want to File for Adjustment of Status

Some Applicants are in the US but do not want to apply for Adjustment of Status.  For example, if you are in the US on a tourist visa and you become engaged or get married, you may want to travel home to tie up lose ends.  Or, you may have a job at home, to which you must return.  In both cases it may make more sense for the Applicant to consular process.

If you or a loved one would like to apply for a green card through consular processing, or need to apply for a provisional waiver, please contact an immigration attorney who is trustworthy and knowledgeable! Our attorneys at Landerholm Immigration, APC, are experienced in both consular processing and waiver cases. Please feel free to call us at 510-488-1020 to see how we can help!