All family based green card processes start with an initial petition identified as the I-130 filed with USCIS. This Petition is filed with the required filing fee and evidence proving the relationship between the Petitioner and the Beneficiary. Evidence of a relationship can be as little as birth certificates demonstrating the relationship between a parent and child, to more substantial evidence such as documents demonstrating that a married couple lives together sharing financial obligations and benefits. Once the I-130 is approved, the applicant will either apply for the green card in the U.S. or will go to a U.S. Consulate abroad. This post addresses obtaining the green card through Consular Processing. You can click here to find out more about Adjustment of Status. (when you want a green card while in the U.S.)
What if I do not qualify for the Adjustment of Status Process? How do I Get a Green Card if I am Outside of the U.S.
What is Consular Processing?
If a Beneficiary desires to have a qualifying petitioning family member petition the Beneficiary for a green card, but the Beneficiary either does not qualify for the Adjustment of Status Process or simply does not live or is physically present in the United States, the Beneficiary can still obtain a Green Card through the process known as Consular Processing.
The Process also begins with the filing of the I-130 Petition by the qualifying petitioning relative. If the petitioner is an Immediate Relative, the process will involve waiting for the I-130 to be approved by USCIS and then proceeding to the next stage which is applying for an Immigrant Visa which is the travel document that will allow the Beneficiary to travel into the United States with the intention of living in the United States which automatically converts the Beneficiary into a Legal Permanent Resident upon admission into the United States. However, this process will vary depending on whether the Beneficiary is living in the United States, usually without status or whether the Beneficiary is living in the country of birth.
If the Beneficiary is living in the United States without status and the Beneficiary has lived in the United States for over six months without status, upon exiting the United States, the Beneficiary will be subject to a bar where the Beneficiary cannot seek an immigration benefit for a period of three years. If the Beneficiary had been living in the United States without status for a period of one year or more, then upon exiting the United States, the Beneficiary will be subject to a ten-year bar.
In situations where the Beneficiary is facing one of these two bars, it must be determined whether this Beneficiary will qualify for a waiver to waive or forgive the three or ten year bar. Also be aware that the individual may have other bars caused by past immigration violations or criminal convictions or violations that my also require a waiver. Assuming a Beneficiary is disqualified by a bar and does not qualify for a waiver, the individual will be barred or disqualified from seeking the Green Card for a period of time as specifically stated under Immigration Law. For instance, three year bar, means spending three years outside of the United States after such time, there is no more bar and no more need for a waiver. Fortunately, many but not all Beneficiaries subject to a three or ten year bar will likely qualify for a waiver. For a discussion of the waivers potentially available for Beneficiaries click here.
Assuming we have a Beneficiary that has lived in the United States without status therefore subject to the three or ten year bar upon departure from the United States, this Beneficiary after approval of the I-130 petition and after applying for the Immigrant Visa, will be able to apply for the waiver assuming the Beneficiary qualifies, while still remaining in the United States. Note that only a waiver of the three or ten year bars can be applied for while the Beneficiary is still present in the United States. As discussed later, any other waiver will need to be applied for after the Beneficiary has attended the Consular interview. Once the waiver is approved then the Beneficiary will be allowed to request an appointment date for the Consular interview at the assigned US Consular Post in his Country of origin. After the interview date is scheduled, the Beneficiary will depart to the country or birth, obtain a medical examination and appear for the scheduled interview where the consular officer will review the Beneficiary’s file and question the Beneficiary to confirm that there are no other issues that disqualify the Beneficiary from the Green Card; to confirm that the relationship to the Petitioner is real and finally to confirm that the Beneficiary deserves the approval of the Green Card. Once the Beneficiary’s case is approved the Beneficiary will be instructed to pick up his travel documents and passport so that the Beneficiary can proceed to enter the United States.
If the Beneficiary has always lived in his Country of birth and has no past issues that disqualify from the Green Card, the Beneficiary will not apply for a waiver and proceed straight to seeking an appointment date after applying for the Immigrant Visa. In the event that an issue is discovered by the Consular Officer at the interview stage that is concluded to disqualify the Beneficiary, the Officer will issue a denial and only if the Beneficiary qualifies for a waiver of the bar, will the Beneficiary be allowed to file for the waiver of the bar back with UCSIC. If the waiver is approved, the Beneficiary will be allowed to reschedule the interview to attempt to have his case reconsidered and hopefully approved by the Consular Officer after USCIS had approved the waiver.
It is critical to understand that this discussion serves as an initial guide to the Green Card Process. Especially in Consular Processing cases, these cases are very complex and confusing simply because you will be dealing with two different government agencies that do not really communicate with each other to complete the Green Card Process. An experienced Immigration Attorney in essence directs the process between the two agencies to get the process completed as soon as possible. Do not risk being stuck in this process. Schedule a consult with one of our experienced Immigration Attorneys so that the Attorney can guide you through the process to obtain your Green Card without substantial delays or grief.
If you are in the U.S. you can find out more about adjustment of Status that by clicking here.
In this family based series of immigration blog posts you can find information on the following:
- Can my Family Members file a Green Card Application for Me? Can I get a Green Card through Family?
- How long will I have to Wait for My Green Card? What is the Visa Bulletin?
- How do I Begin a Family Based Green Card Case? What Do I have to Do to Get a Green Card Through Family? Adjustment of Status
- How do I Begin a Family Based Green Card Case? What Do I have to Do to Get a Green Card Through Family? Consular Processing
- What happens to child who turns 21 years old while waiting for a priority date? My Child is Waiting for a Green Card – What if my Child turns 21?
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