FAQs on Consular Immigrant Visa Processing
Posted Dec 27, 1999

As processing times for I-485s have gotten slower, consular processing for an immigrant visa has become a more attractive option for many of you. In the September 1999 Bulletin of The Law Office of Sheela Murthy, P.C., we included an article setting out some of the factors to consider in deciding whether to adjust status or consular process. An article in our October 1999 Bulletin discusses some procedural considerations.

We hope the following questions and answers that are posed to us at The Law Office of Sheela Murthy, P.C. will also be helpful to those of you who are deciding how to proceed.

Question 1 : What do I need to prepare for consular processing?

Answer 1 : Generally the documents required in consular processing cases are similar to those required for the adjustment of status. Although the forms are different, the supporting documentation tends to be almost identical.

In both processes, a person must, of course, establish eligibility. For example, in a marriage-based case one has to prove a valid spousal relationship.

In an employment-based case, the main fact to keep in mind is that a letter from the company confirming the permanent nature of the full-time position is crucial. If the company is a small company or a family-owned company, in which the sponsoring company and the foreign national are related, then the Affidavit of Support, Form I-864, which is generally used for family based immigration cases, will have to be used for such employer/employee relationships.

If you are consular processing, instead of the FBI fingerprint clearance, you will have to obtain police certificates from all countries (except for the U.S. and those countries where the certificates are known to be unavailable) where you have lived since age 16.

As we have mentioned in previous editions of The Law Office of Sheela Murthy, P.C. Bulletin, most employment-based adjustment cases do not require interviews, but for consular processing there is almost always an interview.

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Question 2 : Where do we need to go for medical - In U.S. or in the other country?

Answer 2 : The Consulate will provide the list of medical doctors with their telephone numbers and addresses to schedule the medical examinations in the home country. You will have to be in the country where the Consulate is located, and usually in the specific city where the Consulate is located. At some consulates, there is a doctor on site and the consulate will schedule the medical appointment for you. Instructions for the medical exam will be in "Packet 4" (the last package the consulate sends out, with your interview appointment letter on top.)

For those whose six years on H-1B will expire within six to twelve months from the date of filing the I-824 for Consular Processing, there could be a slight risk involved. The risk is that if the immigrant visa is not issued before the H-1B deadline date or the six-year limit has been reached, the person will not be able to obtain an employment authorization document or EAD card to continue working. The EAD card is generally available to those who file the I-485 application.

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Question 3 : Immunization - Can it be done in the U.S. and submitted as proof of having completed the immunization?

Answer 3 : Immunizations can be done for people within the U.S. and proof of having completed the immunizations will generally be accepted by medical doctors in other countries. Sometimes, follow-ups may have to be given, depending upon the results of the different tests.

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Question 4 : If I do not have my interview yet when I reach my 6-year H-1 limit, will I have to leave the U.S.? If I have to, then can I come back after one year if the immigrant visa has not been issued by then?

Answer 4 : If the Consular Processing is not completed by the date of the H-1B status completion within the U.S., one will have to leave the United States. Hopefully, the rest of the Consular Processing will not take a full year and the person should be able to re-enter within a few months. In the absolute worst scenario, assuming there are some complications in the processing of the Green Card case, or if the company goes bankrupt, etc., then the applicant can apply for an H-1B visa again after remaining outside the United States for one year and one day.

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Question 5 : Once we attend the interview and are approved at the Consulate can we return to the U.S. immediately or do we have to wait for the "green card" to be received in hand?

Answer 5 : Once the immigrant visa has been issued to the principal applicant and all family members, there is a six month window in which the family can enter the U.S. There is absolutely no need to wait for the Green Card to be issued because that will only be issued after the person has entered the U.S. and submitted his or her paperwork from the Consulate to the INS Officer at the port of entry. The INS Officer makes a notation in each passport that the person is entering as an immigrant of the United States. The stamp in the passport at the time of entry as an immigrant is valid proof of being a permanent resident. The documents in the immigrant visa packet will be forwarded to INS to have the card issued.

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Question 6 : My family members will have finished only 5 years of stay in the U.S. by January 2001. Can they stay in U.S. even if I have to leave at the end of the six-year limit of my H1B?

Answer 6 : Family members, like the spouse and children, who may not have been on H status for the entire six-year term, will be allowed to remain legally in the United States **only as long as they maintain some other valid legal status**. Family members **cannot** remain in the United States on a dependent status like the H-4 status if the principal has completed six years in the U.S. on an H-1B status. However, the spouse could possibly apply for a full-time student (F-1) status or a separate H-1B in his/her name, if eligible.

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Question 7 : Anything else to keep in mind in trying to plan ahead?

Answer 7 : There are many factors outside of your and the attorney's control, such as backlogs at Consulates or delays by the INS in notifying the Consulate of the approval in the case. On the whole, we have found that applicants processed through Consular Processing have received their Green Cards faster than those who have waited for Adjustment of Status processing within the United States. The potential risk though is that when the immigrant numbers start to regress again, the delays in issuance of the immigrant visa may not make consular processing as attractive an option, though at present, it is a viable option to avoid the long delays in I-485 processing.

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The Law Office of Sheela Murthy is pleased to share this information with many of you since we find that most immigration law attorneys are not familiar with the procedural issues pertaining to consular processing and we are often called upon to clarify these issues.