Consular Processing

Consular processing is an alternate process for an individual outside the United States (or who is in the United States but is ineligible to adjust status) to obtain a visa abroad and enter the United States as a permanent resident

Direct Consular Filing (DCF)

A U.S.C. spouse who resides outside of the United States can file an I-130 from outside of the United States, which is known as Direct Consular Filing. Direct Consular Filing allows eligible candidates to speed up the process in which a beneficiary will be allowed to enter the United States. This can then result in an expedited process for obtaining a green card (permanent residency).

Returning Residents and the SB-1 Visa

Lawful Permanent Residents (LPRs) are advised to limit their stays overseas to periods shorter than 12 months in order to maintain their Permanent Residence status in the United States. LPRs that wish to stay overseas for a period greater than one year and less than two years are required to have a valid re-entry permit. Without a re-entry permit, the person may be denied entry into the U.S. But what about an LPR that traveled overseas, with the intention of returning to the U.S. and maintaining their resident status, and could not return within the two-year period for reasons beyond his/her control?

Symbols and Coding used by DHS, DOS and other agencies on immigration documents

The following is a table of the most common codes used on the Form I-551, Permanent Resident Card (Green Card). These codes make it easier for immigration officials to determine whether the alien presenting the document is eligible for a given public benefit. The codes do not determine state funding for federal benefits. In family-based cases where the LPR requires a sponsor, this code is only part of the process for determining whether the LPR in question is eligible for a public benefit.

Visa Refusals and Avenues to Respond

Visa applicants must apply to obtain a visa at the appropriate U.S. consulate. Consular officers may refuse a visa if it believes that the applicant is ineligible for his or her visa under the Immigration and Nationality Act (INA). Visa refusals may be issued on account of an applicant being ineligible under sections 212(a) [inadmissibility], 214(b) [failure by nonimmigrant visa applicant to establish nonimmigrant intent], or 221(g) [failure to fully complete visa application or provide all supporting documentation] of the INA. This article will use the statutes, regulations, and the Foreign Affairs Manual (FAM) to explain the grounds on which consular officers may refuse a visa. We will explain different options available to visa applicants depending on the legal or regulatory ground(s) underlying the refusal.

30/60 Day Rule

In order to obtain a nonimmigrant visa at a U.S. consulate, an applicant must satisfy consular officers that he or she is eligible for the status being sought. If an alien obtains an immigration benefit through “fraud or willful misrepresentation of a material fact,” he or she will be inadmissible under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA). To help guide consular officers, the Department of State (DOS) adopted through the Foreign Affairs Manual a “30/60 Rule.” In short, consular officers will apply high scrutiny to aliens who violate nonimmigrant status in certain ways within 30 days of entry, or between 31 and 60 days of entry. In this article, we will examine the 30/60 day rule, how it is used by adjudicators, and administrative and judicial precedents regarding aliens who violate their nonimmigrant statuses within 60 days of entry into the United States.

Visa Overstays and INA 222g

If a nonimmigrant overstays the period of stay authorized by the Attorney General, or the United States Citizenship and Immigration Services (USCIS) or an Immigration Judge finds that he or she violated nonimmigrant status, the nonimmigrant's visa will be rendered void. With limited exceptions, an alien who overstayed a nonimmigrant visa may only be readmitted to the United States after applying for a new visa at a consular office in his or her country of nationality.

Visa Revocations

The Department of State (DOS) has the authority to revoke a nonimmigrant visa or an immigrant visa at any time while the visa holder is outside of the United States. The DOS’s authority derives from statute and is developed in both DOS regulations and the DOS Foreign Affairs Manual (FAM) for consular officers. Additionally, DOS may provisionally revoke a visa while it considers information relating to whether the visa-holder is eligible for the visa. If a visa is revoked, it will be cancelled by DOS. In this article, we will look at the applicable statutes, regulations, and agency guidance to explain visa revocations.

Consular Post Prudential Visa Revocations for Driving Under the Influence

In general, a Consular Post may not revoke the visa of a nonimmigrant who has either been admitted into the United States or has commenced an uninterrupted journey to the United States. For the Department of State (DOS) to revoke a visa in the case, the revocation must go through DOS’s Visa Office of Screening, Analysis, and Coordination. However, the current version of DOS’s Foreign Affairs Manual (FAM) allows the Consular Post that issued a nonimmigrant visa to, under certain circumstances; prudentially revoke the visa of an alien who has been convicted within the previous 5 years of driving under the influence (DUI) or a related offense. In this article, we will examine the FAM’s policies on prudential visa revocations for DUI arrests or convictions and recent comments by the DOS addressing the FAM guidance.

Visa Interview Waivers and Drop Box Submissions

Most nonimmigrant visa applicants are required to appear at their U.S. Embassy or Consulate for a visa interview. There are limited exceptions to the interview requirement found in 22 C.F.R. 41.102(b) for diplomats and those seeking to renew certain nonimmigrant visas. The Foreign Affairs Manual expands on the regulations in the form of the Interview Waiver Program. In this article, we will examine the regulations and agency guidance to see the rules for when a nonimmigrant visa applicant is eligible to make a “drop box” submission to renew a nonimmigrant visa in lieu of appearing for an interview.

Drop-Box Visa Renewal Applications in Russia

Department of State (DOS) regulations allow for limited waivers of the nonimmigrant visa interview requirement for applicants who seek renewal of certain nonimmigrant visas within 12 months of expiration. In 2012, the DOS also began the Interview Waiver Program, which allowed for applicants seeking renewal of certain nonimmigrant visas later than 12 months but within 48 months. In order to take advantage of the Interview Waiver Program, the applicant must make what is called a “drop-box” submission. In this article, we will examine the process for making a drop-box submission when applying to renew a nonimmigrant visa in Russia.

Case Law on the Abandonment of Permanent Resident Status

If a lawful permanent resident (LPR) is found to have abandoned his or her permanent residency, he or she will be subject to loss of status. An LPR who is charged with having abandoned his or her status will be subject to removal proceedings if he or she is present in the United States on account of having been allowed entry as an LPR. In this article, we will discuss relevant administrative and judicial precedent regarding the abandonment of LPR status.

DOS Rules for Abandonment of Permanent Residency

In order for a lawful permanent resident (LPR) to maintain his or her permanent resident status, he or she must retain the intent to live in the United States. An LPR may depart the United States temporarily and retain his or her LPR status; however, an LPR who departs the United States must retain the intention to reside in the United States for the entirety of his or her temporary trip abroad. If it is found that a departure was not temporary, the alien’s LPR status will be considered to have been “abandoned.” The abandonment of LPR status results in the loss of status and leaves the alien subject to removal from the United States. In this article, we will discuss the concept of “abandonment” of LPR status and the rules regarding abandonment found in the pertinent statutes, regulations, and in the Department of State’s (DOS’s) Foreign Affairs Manual (FAM) (with a focus on the DOS criteria).

Eligibility to Receive a Second Immigrant Visa While on LPR Status

In certain circumstances, an alien who is a lawful permanent resident (LPR) may be able to receive another immigrant visa for a different preference category. An LPR may only receive another immigrant visa in a different preference category through consular processing. An LPR may benefit from this for purpose of conferring derivative status (rather than filing a family-sponsored petition in the second preference category). Additionally, an LPR may benefit from an immigrant visa in a different preference category if the basis on which he or she obtained LPR status would be detrimental in traveling to a specific country. In this article, we will examine the relevant guidance from the DHS, DOS, and DOL on the ability of an LPR to receive another immigrant visa in a different preference category.

Termination of Immigrant Visa Registration

Under certain circumstances, the Department of State (DOS) has the authority to terminate an immigrant visa registration and revoke the underlying immigrant visa petition. In general, the termination of immigrant visa registration will occur when an applicant with an approved immigrant visa petition fails to follow through by making an application for an immigrant visa within one year of receiving notice that an immigrant visa number is available, or when the applicant fails to attempt to overcome the ground(s) for a visa refusal in a timely manner. In this article, we will examine the applicable statutes, regulations, agency guidance, and judicial precedent regarding the termination of immigrant visa registration.

Form I-131A, Application for Travel Document (Carrier Documentation)

On August 31, 2016, the United States and Citizenship Services published a new form called the Form I-131A, Application for Travel Document (Carrier Documentation). The purpose of this new form is to allow a lawful permanent resident (LPR) who either lost his or her Form I-551, Permanent Resident Card (“Green Card”) or had it stolen or destroyed while abroad to procure documentation to reenter the United States. In this article, we will examine the uses for the Form I-131A, guidance from the form instructions, and provide general information on the subject.

DOS Releases New Reciprocity Fee Schedule for South Africa

On November 21, 2016, the Department of State (DOS) revised the reciprocity schedule for South Africa. The new reciprocity fee schedule for South Africa is effective immediately. The new reciprocity fee schedule for South Africa will reduce the fees for each nonimmigrant visa category listed “commensurate to those imposed by the Government of the Republic of South Africa on U.S. Citizens. The new reciprocity fee schedule for South Africa in fact eliminates fees entirely across a range of nonimmigrant visa categories. All visa validities for South African nationals remain unchanged in the new reciprocity schedule for South Africa.

Suspension of Visa Interview Waiver Program Under President Trump's March 6, 2017 Travel Order

On March 6, 2017, President Donald Trump signed an Executive Order titled “Executive Order Protecting the Nation From Foreign Terrorist Entry Into The United States” (“Travel Order”). This Executive Order revokes and replaces an Executive Order of the same name issued by President Trump on January 27, 2017. In this article, we will examine the portion of the Travel Order that indefinitely suspends the Visa Interview Waiver Program.

DOS Cables on Implementation of President Trump's March 6 Travel Order (Effective Immediately)

On March 23, 2017, Reuters obtained four Department of State (DOS) cables relating to the implementation of visa interview procedures stemming from President Donald Trump’s March 6 Executive Order 13780 titled “Protecting the Nation From Foreign Terrorist Entry Into the United States” (“Travel Order”), and an associated Presidential Memorandum. In this article, we will examine the changes detailed in the DOS cables that will take effect immediately (provisions that are unaffected by the ongoing litigation regarding the Travel Order).

DOS Proposal for Enhanced Vetting of Certain Visa Applicants

On May 4, 2017, the United States Department of State (DOS) published a notice in the Federal Register (FR) titled “Notice of Information Collection Under OMB Emergency Review: Supplemental Questions for Visa Applicants.” In the Notice, the DOS submitted an information collection request for a limited subset of consular processing cases to the Office of Management and Budget (OMB) seeking approval in accordance with the emergency review procedures of the Paperwork Reduction Act of 1995. The FR Notice is open for public comment until May 18, 2017. If the OBM grants emergency approval by May 18, 2017, such emergency approval will only be valid for 180 days. In this post, we will examine the request and what it may mean if OMB grants emergency approval.

Trump Memorandum Adjusts Effective Date of Executive Order 13780

On June 14, 2017, President Donald Trump issued a Presidential Memorandum titled “Effective Date in Executive Order 13780” to the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence. President Trump issued Executive Order 13780, titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” on March 6, 2017. Certain provisions of the Executive Order were enjoined before it could take effect. Due to the suspension of entry and suspension of refugee travel provisions having been blocked, the suspensions were slated to expire without ever having gone into effect. In the Presidential Memorandum, President Trump took the position that the enjoined provisions of sections 2, 3, 6, and 12(c) of Executive Order 13780 were “delayed or tolled” until the injunctions are lifted or stayed. President Trump then declared that the effective date of each enjoined provision is now the date on which the injunctions are lifted or stayed with respect to each enjoined provision. He added that the Presidential Memorandum “should be construed to amend the Executive Order” to the extent necessary.

SCOTUS Agrees to Hear Travel Order ("Travel Ban") Case and Narrows Injunction

The case concerns challenges to President Donald Trump’s Executive Order 13780, issued on March 6, 2017. Multiple provisions of the Executive Order had been enjoined by Federal District Courts, and the injunctions were mostly upheld by the United States Courts of Appeals for the Fourth and Ninth Circuits. The two provisions primarily at issue before the Supreme Court were the temporary suspension of entry of nationals of six countries and the temporary suspension of refugee travel. The Court granted the Government’s petition for certiorari in the cases, meaning that it will hear oral arguments next October and presumably decide the cases next term. The Trump Administration also requested a stay of the injunctions. The Supreme Court granted the request for the stay, in part, holding that the injunction no longer applies to individuals who lack a bona fide relationship with a person or entity in the United States. In this article, we will examine the Court's opinion as well as the concurring/dissenting opinion authored by Justice Clarence Thomas.

Statements from Pres Trump, DOS, DHS, and DOJ on IRAP v. Trump Decision

On June 26, 2017, the Supreme Court issued a decision in Trump v. International Refugee Assistance Project, 582 U.S. ___ (2017). The decision concerned the so-called “travel ban” included in President Trump’s March 6, 2017 Executive Order 13780 titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” In short, the Court agreed to hear the challenge to the Executive Order during the court’s next term (likely in October), but it also narrowed significantly the lower court injunctions against the Executive Order’s suspension of entry of nationals of six countries and the suspension of refugee travel. In this article, we will examine the early responses to the ruling from the Trump Administration for clues on what may be the next steps regarding the implementation and enforcement of the non-enjoined provisions of the Executive Order.

President Trump Does Away With Nonimmigrant Visa Applicant Interview Target

On June 21, 2017, President Donald Trump issued Executive Order 13802, titled “Amending Executive Order 13597.” Former President Barack Obama signed Executive Order 13597, titled “Establishing Visa and Foreign Visitor Processing Goals and the Task Force on Travel and Competitiveness,” on January 19, 2012. The now-stricken section 2(b)(ii) of Executive Order 13579 directed the Secretaries of State and Homeland Security to develop an implementation plan to “ensure that 80 percent of nonimmigrant visa applicants are interviewed within 3 weeks of receipt of application, recognizing that resource and security considerations and the need to ensure provision of consular services to U.S. citizens may dictate specific exceptions.”

DHS and DOS Implementation of Travel Executive Order After Supreme Court Decision

On June 29, 2017, the Department of State (DOS) and the Department of Homeland Security (DHS) issued documents regarding their implementation of sections of Executive Order 13780 relating to the suspension of entry of nationals of six countries and the suspension of refugee travel (colloquially called the “Travel Ban”). The restrictions took effect at 8:00 P.M. EDT on June 29, 2017, subsequent to the Supreme Court of the United States lifting parts of the lower court injunctions against those sections of Executive Order 13780 in Trump v. International Refugee Assistance Project, 582 U.S. ___ (2017). In this article, we will examine the relevant DOS and DHS guidance and explain what it means going forward.