Consular Processes (Immigrants & Nonimmigrants)

1. Immigrant visa application process

1) The National Visa Center and the Transitional Immigrant Visa Processing Center

In October of 1991, the Department of State opened the Transitional Immigrant Visa Processing Center (TIVPC) to centralize and administer the initial processing of immigrant visa applications. In March of 1994, the State Department opened its National Visa Center (NVC) in Portsmouth, NH to take over TIVPC functions. The role of the NVC is to review the petition for accuracy and completeness. A case file and computer record are then created.

2) Visa Interview

The visa application (OF-230 Part II) is executed at the time of the interview in the presence of the consular officer. The prescribed and non-refundable application fee is paid prior to adjudication. The visa issuance fee is collected after the interview. The interview is used to determine eligibility. Generally, the consul questions the applicant and reviews the documents within the purview of the various exclusionary grounds (now called grounds of “inadmissibility” under IIRAIRA) contained in INA §212 (a). The applicant bears the burden of proof as to admissibility.

3) 3 and 10-year Unlawful Presence Bars

According INA §§ 212(a)(9)(B)(i)(I) and (II), they impose 3 and 10-year periods of admissibility for most applicants who were unlawfully present in the U.S. for certain periods subsequent to April 1, 1997.

4) Attorney Representation

The Sate Department acknowledges that there is an appropriate role for the attorney in the visa process. The attorney can help prepare a case properly, weed out bad cases, and alert applicants tot he risks of falsifying information; Also the attorney can help the consular officer by organizing a case in a logical manner, by clarifying issues of concern, by avoiding duplication of effort and by providing the applicant with the necessary understanding of the intricacies of the visa process.

5) Waiver of Inadmissibility

An immigrant visa application who is eligible for a waiver of inadmissibility can only file the waiver application at the consulate after the interview is completed and a formal finding of inadmissibility has been made. At the present time, there is no pre-processing for most waiver applications. The waiver application is forwarded to and adjudicated by INS.

6) Visa Refusal

An immigrant visa can be legally refused only on the basis of a ground specifically set forth by statute or regulation. When an immigrant visa is refused, the consul must give the application timely, written notification of the provision of law or regulation on which the refusal is based and also must notify the application of any statutory provisions under which administrative relief may be available.

7) Visa Issuance

Section 631 of IIRAIRA amended INA § 221(c) to provide that an immigrant visa is valid for a period of up to 6 instead of 4 months. In some situations, the visa may be issued for a shorter time. The 6 month limitation does not apply to immigrant visas issued before September 1, 2001. Certain aliens are not required to present s passport when applying for an immigrant visa. Similarly, some aliens are also exempt from obtaining an immigrant visa in order to enter the U.S. in residence status.

8) Visa Revocation and Registration

A consular officer may revoke an immigrant visa when it is discovered that the visa was obtained by fraud or misrepresentation, or when subsequent information reveals a ground of ineligibility. The regulations provide that an alien’s registration for an immigrant visa shall be terminated if , within one year of scheduling the final interview, the alien fails to apply for the visa.

2. Nonimmigrant Visa Considerations

1) General Procedures and Considerations

The nonimmigrant visa application must be made on DOS Form OF-156, to which a recent photograph must be attached. Each visa category also generally requires the presentation of other types of documentation to establish eligibility. Once the consular officer has agreed to issue a visa, he/she will consult FAM Appendix B to determine whether there is a visa issuance fee pursuant to the reciprocity schedule between the U.S. and the applicant’s country of nationality. Attorneys should consult the reciprocity schedule before the applicant applies for the visa to ensure that sufficient funds are brought to the visa interview.

2) Presumption of Immigrant Intent

INA § 214(b) has been responsible for the overwhelming majority of nonimmigrant visa (NIV) denials. It provides that every alien is presumed to be an immigrant, until he establishes to the satisfaction of the consular officer at the time of his application for a visa, and the Immigration Inspector at the time of his application for admission to the U.S., that he qualifies as a nonimmigrant. The DOS recently issued a new proposed rule to amend 22 CFR § 41.103 (a)(4) by giving consular officers the authority to refuse to reconsider for a period of 6 months any application denied under § 214 (b) unless the applicant presents “significantly different new evidence or evidence of a genuine emergency. ”