Table of Contents
Consular Visa Applications
Immigrant Visa Processing
There are two ways to apply for permanent resident status in the United States.
Consular Processing – The beneficiary of an approved immigrant petition with visa number immediately available may apply at a U.S. consulate abroad through the process called “consular processing.”
Adjustment of Status – Alternatively, if the beneficiary is already in the United States, the beneficiary may apply for the visa without having to return to his or her home country through the process called “adjustment of status.”
If the immigrant petition indicates that the beneficiary will apply for the visa at a U.S. consulate abroad, an approved immigrant petition is forwarded by the USCIS to the National Visa Center (NVC) in Portsmouth, NH for immigrant visa pre-processing at the correct time. Immediate relative (IR) categories do not have yearly numerical limits. However, family preference and employment-based immigrant categories have numerical limits each year; and therefore, wait times are involved, which can be lengthy, for processing to begin. Visa processing begins when the petition’s priority date is already current based on the monthly visa bulletin issued by the Department of Travel.
Consular processing applies when the beneficiary of an approved Form I-130, Form I-140, or Form I-360 petition is outside U.S., ineligible to apply for adjustment of status within U.S., or prefers consulate processing for strategic or convenience reasons. Consular processing is processing through the NVC and a consular post. The NVC collects the fess, affidavit of support, civil documents, and police certificates, as required. When a case is complete, the NVC sends an appointment letter to the applicant, petitioner, and agent/attorney of record, if applicable, notifying them of the date, time, and location of the interview. The NVC then forwards the petition to the appropriate consular post. If the beneficiary will apply for immigrant visa in Guangzhou, China, the Consulate General in Guangzhou, China will send the appointment letters.
Steps in Consular Processing
Non Immigrant Visa Processing
There are two ways to apply for a nonimmigrant visa. An individual can apply at a U.S. consulate abroad. Depending on the type of nonimmigrant visa, a previously approved nonimmigrant petition filed with the USCIS may be required. If the individual is already in the United States and maintaining a valid nonimmigrant status, he or she may apply to USCIS for extension or change of status without need of departing from the United States during the pendency and beyond the expiration of his or her current status up until the extension or change of status application is adjudicated. Application through a U.S. embassy or consulate abroad is called “consular processing” while application made while in the United States is called “extension of stay” or “change of status,” as the case may be.
The first step to apply for a nonimmigrant visa is to fill out the DS-160, a web-based form that consolidates all the information previously collected on the DS-156, DS-157, and DS-158 for appropriate applicants, and the DS-3052. This electronic form is available on the Department of State website. Currently, this form applies to all nonimmigrant applicants, except K visa applicants who must use DS-156, Nonimmigrant Visa Application. The information entered on the DS-160 combined with the personal interview and supporting documentation form the basis for determining an applicant’s eligibility for a nonimmigrant visa.
After completing the DS-160 application online, the applicant must pay the required visa application fee. The applicant must also schedule an interview with the U.S. embassy or consulate at which he or she wishes to be interviewed. At the interview, the applicant must be prepared to present supporting documentation depending on the type of visa applied for.
Different consular posts may have different rules on how to schedule an interview and pay the visa fee. Applicants for nonimmigrant visas must visit the website of the U.S. embassy or consulate where they intend to apply for additional country-specific instructions.
Each family member, even infants, accompanying a visa applicant must submit a separate nonimmigrant visa application, with supporting documentation.
Categories Requiring Approved Petition
For H, L, O and P nonimmigrant visa categories, a prior petition approved by USCIS is required. Petitions for classification under these categories are filed with USCIS on Form I-129, Petition for Nonimmigrant Worker. The petition must indicate whether the beneficiary is applying for a visa at a U.S. embassy or consulate abroad or requesting for an extension or change of status. If a petition indicates that the beneficiary will apply through consular processing, the petition and supporting documentation must be submitted in two copies. Once approved, the USCIS will forward the duplicate copy of the approved petition to the designated U.S. embassy or consulate.
The transmittal of the approved petition to the U.S. embassy or consulate may take considerable time. To avoid delay, the beneficiary may apply for a visa as soon as he or she receives a copy of the Form I-797, Approval Notice. An attorney-certified copy of the petition may be presented by the applicant if required. However, the consulate may require the actual approved petition from USCIS and defer processing the application until such arrives.
If the applicant changes his or her choice of consulate after the petition has been approved and forwarded by USCIS to the designated consulate, the petitioner may request that the new consulate or port of entry be notified of the previous approval of a petition. Such a request must be made on Form I-824, Application for Action on an Approved Application or Petition and filed by the petitioner with the USCIS service center that approved the petition. The Form I-824 application could take several months to process which could result in significant delay in obtaining a visa. .
Non Immigrant Intent
In most cases, refusal of nonimmigrant visa applications at the consular post is based on Section 214(b) of the INA. This section provides that foreign nationals seeking entry on nonimmigrant status, with a few exceptions, are presumed to be intending immigrants. If visa is refused under this section, this means that the applicant has not been able to overcome the presumption that he is an intending immigrant by demonstrating strong ties to his home country and that he has a residence in his home country that he has no intention of abandoning.
There are no hard-and-fast rules on what type of evidence will satisfy the requirement for demonstrating strong ties to the home country. Ties are the aspects of one’s life that bind him or her to his or her place of residence. Ties include family relationships, employment, and property ownership or possessions. Other factors may also be relevant, such as the applicant’s educational background, status in the society, and prospects of employment in the place of residence.
List of Documents to Establish Strong Ties To the Home Country
The presumption of Section 214(b) does not apply to the following visa categories: H-1B, H-1C, H-4, L-1, L-2, and V. These are the so-called “dual intent visas.” The regulations provide that the approval of a permanent labor certification or the filing of an immigrant petition for an individual shall not be a basis for denying an H-1C or H-1B petition or a request to extend such a petition, or the individual’s admission, change of status, or extension of stay.
Visa Issuance or Denial
The consular officer who conducted the interview will inform the applicant at the conclusion of the interview whether he or she qualifies for a U.S. visa. If the applicant qualifies for the visa, the applicant will be required to submit his or her passport for visa stamping. The passport with the U.S. visa stamp will be delivered to the applicant in accordance with the procedure of the particular consulate issuing the visa.
If a visa cannot be issued to the applicant, the consular officer will inform the applicant of the legal and factual bases for the denying the application, unless the facts cannot be disclosed because they are classified. As the case may be, the consular officer may provide the applicant an opportunity to submit additional evidence to establish his or her eligibility for a visa before denying the application.
The information presented in this section provides a general overview of the naturalization process in the United States. For accurate and up-to-date information tailored to your individual case, we recommend seeking professional assistance from MTS Law. With over 10 years of experience, our team has successfully guided clients through various aspects of immigration law, ensuring the best possible outcomes for their clients. Contact MTS Law today for comprehensive and reliable immigration legal services.
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