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Foreign Nationals may select either Immigrant Visa Processing or Adjustment of Status as their final step to securing an immigrant visa for permanent residence in the United States. Immigrant visa processing entails applying for an immigrant visa at a United States embassy or consulate in a foreign country, typically when the foreign national seeking the visa is currently residing abroad (AILA.1.3) Whereas adjustment of status (I-485) is when a foreign national seeking permanent resident status applies through domestic agencies, typically while the foreign national is currently residing in the United States (AILA.1.2). There are, however, many exceptions to this standard and sticking to this norm may not always result in the most favorable and expedient outcome
This is a personal decision that depends on individual circumstance. Immigrant visa processing requires that the foreign national stay or return abroad for a minimum of two weeks, usually longer, to complete their medical examination and immigrant visa interview at their assigned consular post (AILA.1.2). If the foreign national will not be able to remain abroad for this period of time, it is recommended that the foreign national pursue adjustment of status instead(AILA.1.2). On the other hand, if the foreign national is planning to travel back to their country of origin anyways, it may make more sense for the applicant to pursue immigrant visa processing even if the individual is currently residing in the United States(AILA.1.3). Potential applicants should be aware that processing times, in general, are shorter for immigrant visa processing than for adjustment of status, although applicants should always consult the Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) websites for projected processing times(AILA.1.4).
Prior to submitting the immigrant visa petition, the foreign national will be asked to complete the Form I-140 [Immigrant Petition for Alien Worker]. On this form, the individual will be asked to indicate whether they would like to pursue immigrant visa processing or adjustment of status in the future, should their petition be approved. It is recommended that the foreign national, regardless of their ultimate decision, select immigrant visa processing at the outset if there is not a visa presently available for the foreign national.
On this form, if immigrant visa processing is selected at the outset, the foreign national may freely select to pursue either immigrant visa processing or adjustment of status when their priority date becomes current (more on this later).
Whereas if adjustment of status is selected at the outset, the foreign national may pursue adjustment of status or embark on a more difficult route to pursue immigrant visa processing. If the foreign national selects adjustment of status on their Form I-140, they then must also submit the Form I-824 [Application for Action on an Approved Application or Petition] through the Department of State and pursue this application in parallel.
Thus, if and when submitting the Form I-140, selecting immigrant visa processing at the outset is recommended to ensure greater flexibility. (AILA.1.5)
At the time of this publication, there is a limit of 140,000 available immigrant visas per fiscal year, regardless of whether conferred via immigrant visa processing or adjustment of status (AILA.2.1). Spouses and children of foreign nationals who seek immigrant visas in conjunction with the primary applicant (otherwise known as “derivative applicants”) equally count towards this number (AILA.2.1). The Department of State further stipulates that the number of immigrant visas approved in any quarter of the fiscal year may not exceed 27% of the annual quota, or maximum 37,800 immigrant visas conferred per quarter (AILA.2.2).
Applicants are also subject to a per-country limitation as well, where only seven percent of all immigrant visas, a maximum of 9,800 per year, may go to applicants from any given country(AILA.2.3). It should be noted that this is not the number of visas any given country is entitled to, but rather the absolute maximum their applicants may receive in any given year (AILA.2.4). Furthermore, applicants for immigrant visas are “charged” to the country in which they were born, not the country in which they hold citizenship, if different (AILA.3.6). The Department of State maintains that the current practice of per-country limitation is nondiscriminatory, but from an objective standpoint, applicants born in China, India, Mexico, and the Philippines face significantly longer wait times than applicants from other countries (AILA.3.3).
In addition to the worldwide quota and per-country limitation, the United States utilizes a ranked preference system for employment-based visas, with each receiving a set percentage of immigrant visas. The preference system exists as follows:
First preference (EB-1): Priority Workers —highly acclaimed individuals with extraordinary ability in their field, outstanding professors and researchers, international executives and managers (28.6% of visas allocated);
Second preference (EB-2): Professionals Holding Adv. Degrees and People with Outstanding Ability — applicants with graduate-level degrees, extended experience in their respective field, or outstanding ability in their profession (28.6% of visas allocated);
Third preference (EB-3): Skilled Workers, Professionals, and Other Workers — a very broad category that covers, for the most part, general applicants who do not qualify as (EB-1) or (EB-2) (28.6% of visas allocated);
Fourth preference (EB-4): Certain Specialized Immigrants — applicants who come from a set list of very specific and specialized backgrounds, there are many varieties of classified (EB-4) applicants, travel.state.gov should be consulted for the extensive list (7.1% of visas allocated);
Fifth preference (EB-5): Investors — applicants who have demonstrated interest and intent to invest in enterprises that will stimulate job creation in the United States (7.1% of visas allocated).
In a given quarter, if immigrant visas from one or more categories are underutilized, unused numbers can be transferred down from (E-1) to (E-2) or from (E-2) to (E-3), or transferred up from (E-4) and (E-5) to (E-1) and subsequently down to (E-2) and (E-3) (AILA.4.3). As a result, higher demand in the lower preference categories ultimately affects the number of allocated visas in higher categories (AILA.4.3).
Immigrant visa processing follows the approval of the immigrant visa petition, and in some cases, the approval of the labor certification application, which is required for certain I-140 categories (AILA.2.1). Once the employment-based immigrant visa petition gets approved, U.S. Citizenship and Immigration Services (USCIS) notifies the National Visa Center (NVC) of the approval, who will contact the foreign national when their priority date “becomes current” or is likely to become current in the following year (AILA.2.5&7). Potential applicants should be advised that approved immigrant visa petitions awaiting immigrant visa processing may sit on backlog at the NVC for anywhere from a couple of months to many years depending on the foreign national’s country of origin and type of visa due to numerical limitations on available immigrant visa numbers (AILA 3.1)
In determining the order of petition-approved applicants to receive an immigrant visa, a system of “priority dates” is used to effectively place an applicant in line (AILA.6.3). The foreign national’s priority date is the same as the filing receipt date of their immigrant visa petition, and it determines their place in the queue relative to other applicants charged to the same country and in the same preference level (AILA.6.4). The earlier their priority date, the sooner their priority date will be “current”, at which point the foreign national can begin the next steps for immigrant visa processing(AILA.6.4).
A category is regarded to be “current” when the availability of immigrant visas exceeds the present demand, and thus there is no waiting period (AILA.6.5). For example: Say there are 20,000 (EB-2) applicants worldwide when there are 40,040 (EB-2) immigrant visas available. Typically, the (EB-1), (EB-2), and (EB-3) preference levels remain current, except for individuals charged to China and India (AILA.7.5). When a country is oversubscribed (i.e. that the number of immigrant visa applicants exceeds the per-country limitation), a cut-off date is established and foreign nationals are placed on a visa waiting list based on their priority date (AILA.7.3).
The Department of State (DOS) publishes two charts as part of the Visa Bulletin on the DOS website: Dates for Filing chart and Final Action Dates chart. The charts are up-to-date guides on which priority dates are current; foreign nationals for immigrant visas with priority dates that land before the date listed in the chart are considered current. If the foreign national priority date is current based on Dates for Filing, these applicants should begin to prepare for immigrant visa processing as instructed by the NVC (AILA.8.4). But the immigrant visas can only be granted when the foreign national’s priority date is current under the Final Action Dates chart.
When the priority date of the foreign national becomes current, the NVC will contact the foreign national via email or letter to begin visa pre-processing(AILA 3.2). Pre-processing begins by the NVC asking the foreign national to select an agent if they so desire and then pay the applicable fees (AILA 3.5). To select an agent, the foreign national must fill out the electronic Form DS-261 [Online Choice of Address and Agent], and the agent may be an attorney, an immigration professional, a family member, or anyone the foreign national trusts (AILA 3.5). The foreign national is not required to select an agent, however if they choose not to, they must properly complete and submit Form G-28 [Notice of Entry of Appearance as Attorney or Accredited Representative] (AILA 3.5). Furthermore, fees to the NVC must be paid online through the Immigrant Visa Invoice Payment Center, which requires routing and account numbers from a United States bank (AILA 4.3). Once all fees have been paid, the NVC will then request that the foreign national send in the required documents (AILA 4.3). (See: Fee Breakdown for a complete list of fees)
Original or certified copies of civil documents must be provided to the NVC and brought to the immigrant visa interview for the foreign national and all derivative applicants (AILA.7.4). If the documents are not in English, translations must be provided and certified (AILA.7.4).
The foreign national and all derivative applicants must provide valid birth certificates(AILA.8.1); if a child is adopted, the foreign national must also provide a certified copy of the adoption decree and a statement showing dates and places where the child resided along with their adoptive parents (AILA.8.2).
All applicants must provide proper documentation of present and past marriages, specifically marriage certificates for present marriages and a final divorce decrees, death certificates, or annulment papers for all previous marriages. (AILA.8.4&5)
All immigrant visa applicants over the age of 16 must also present police clearance certificates, which detail the reporting information collected by the authorities on the parties in question; applicants must submit this clearance certificate from their area of residence at the time of application, as well as every locality in which the individual has resided for over six months. (AILA.9.1)
Next, all parties must submit any prison and military records, if applicable.(AILA.10.2)
Lastly, each applicant must have a valid passport and submit a copy of the biographic data page to the NVC. (AILA.11.1)
If one or more of these civil documents are unavailable, per-country instructions are listed on the Reciprocity Portal for valid substitutions that may take their place. (AILA 8.3) All civil documents and other forms should be submitted together as one packet, failure to do so may result in significant delays. (AILA. 11.5)
The NVC will reach back out to the foreign national in six weeks to either request any missing documents or schedule the immigrant visa interview at the respective U.S. Embassy or Consulate (AILA.12.4). The foreign national will be considered “documentarily qualified” once they have provided all the requested documents to the NVC and after the consular office has concluded the required security clearance measures, at which point the foreign national will be cleared to have the immigrant visa interview (AILA.12.5). Applicants should be aware that being documentarily qualified is a milestone that solely ensures that one is eligible to move forward with immigrant visa processing, and is in no way a guarantee that the FN will ultimately receive an immigrant visa.(AILA.12.5)
When the foreign national’s file has been completed, the NVC will contact the appropriate consular officer to schedule an interview appointment for the foreign national and will alert them of the appointment via email (AILA.6.2). At this point, the foreign national will be required to complete Form DS-260 [Electronic Application for Immigrant Visa and Alien Registration], which can be accessed via the Consular Electronic Application Center, and should be printed upon completion and taken to the interview(AILA.6.3). This form must be completed in the English language using standard English characters(AILA.6.5). Furthermore, it is imperative that the applicant lists their accurate final U.S. address on Form DS-260, as this will be the address to which their Permanent Resident Card will be delivered; if one is not certain of their final U.S. address, then one should list the address of a trusted party such as a family member or close friend (AILA.7.2).
Throughout this last step of the immigrant visa application process, it is of the utmost importance that either the foreign national or the agent on behalf of the foreign national maintain contact with the NVC. Once the foreign national has been provided with their visa number, it is their responsibility to ensure that contact with the NVC is maintained at the very least once a year while waiting for their immigrant visa interview appointment. If contact has not been established with the NVC in over a year, then the foreign national will have to repay all fees as well as resubmit all previously requested documents. Therefore, applicants should conceptualize a ticking countdown of one year that starts from the last point of contact with the NVC. (AILA.21.2)
Furthermore, if the foreign national’s priority date becomes current and the foreign national fails to properly apply for the visa within the next year once the visa has become available, then the Department of State will promptly terminate their immigrant visa petition. The NVC and the Department of State do not consider a change in address (either email or physical) resulting in a loss of correspondence from the NVC to be a valid reason for not maintaining contact or not applying for the available visa in a timely manner, and will not reinstate the petition if this is the case. (AILA.21.1) Therefore, it is of the utmost importance that the foreign national promptly communicate any change of contact information to the NVC. To communicate this change, the NVC can be contacted via email, telephone, or a contact form found online.
If the foreign national can adequately prove that lack of contact to the NVC or failure to properly apply for the immigrant visa once it becomes available were due to reasons that were outside of the control of the applicant (which does not include failure to receive notices from the NVC due to change in email or physical address), then their petition may be reinstated and they may again become eligible to apply for the immigrant visa. (AILA.21.3)
Once the NVC has scheduled the immigrant visa interview at the applicant’s respective U.S. embassy or consulate, the foreign national will be notified via an interview appointment letter. Appointments are scheduled one month in advance and are intended to be set within 60 days of receipt of all requested documents, although at times there may be a delay of several months for another interview appointment to open up (AILA.13.4). Once the foreign national has received confirmation of the appointment, they should follow these steps before the interview(AILA.13.5):
No matter the age, all applicants must undergo a medical examination before the immigrant visa interview to certify that they are eligible to receive an immigrant visa to the United States. The medical exam must be in accordance with standards set by the United States Public Health Service and must be performed by a doctor previously approved by the respective embassy or consulate in the country where the interview will be conducted(AILA.14.2). Applicants may select a doctor through a DOS web portal that offers a drop-down menu of all approved physicians in the country of application (AILA.14.3). The applicant must then arrange the examination with one of the physicians and should explain at the outset the explicit purpose of the examination as well as provide the physician with the upcoming date of the interview, as the exam must be completed with results returned prior to the interview appointment (AILA.14.3). Applicants are responsible for all costs associated with the medical examination and any related tests. (AILA.14.3)
To the medical examination, one should bring all prior medical records and some form of government-issued identification (AILA.14.6). Before the medical appointment, applicants should consult the previously mentioned DOS web portal to confirm all that they must bring to the exam, as some countries require additional documents and records to be presented at the medical examination (AILA.14.6). Additionally, some embassies or consulates require that the medical exam be completed a certain number of days prior to the immigrant visa interview, and this information can also be accessed on the DOS web portal.(AILA.14.6)
As part of the examination, the physician will review and report all previous medical history and conduct a full physical examination, chest X-ray, and all recommended blood tests. The physical examination, at the very least, will cover the extremities, eyes, ears, nose, throat, lymph nodes, heart, lungs, abdomen, external genitalia, and skin.(AILA.14.5) Applicants in the FN’s party under the age of 15 will likely be exempt from any chest X-rays and blood tests.(AILA.14.5)
If an applicant experiences any kind of chronic condition, they should be familiar with their diagnosis, past and present courses of treatment, and prognosis, and should be able to present this information both at the medical examination and at the immigrant visa interview. (AILA.15.1)
If an applicant has ever tested positive for Tuberculosis, Syphilis, or any other venereal disease, then a certificate must be presented to the approved physician detailing the diagnosis and certifying that the patient was adequately treated, including all medications prescribed for this illness(AILA.15.3). If an applicant has ever had an abnormal chest X-ray, then the film must be presented to the approved physician during the exam so that it may be compared to the present X-ray. (AILA.15.4)
If an applicant has been diagnosed with an intellectual or learning disability, they must present the details of their condition as well as any educational or supervision accommodations they may need presently and in the future. (AILA.16.4)
If an applicant has been found to have any sort of disorder or behavior that poses a threat to the property, safety, or wellbeing of the applicant or those around them, including any attempt at suicide or self-harm no matter how minor, the physician will deem them inadmissible and will not be issued an immigrant visa. (AILA.16.1)
Following the medical examination, the physician will either send results directly to the consular post or give the applicant a sealed envelope to present during the immigrant visa interview, which must remain completely sealed when delivered to the consular officer in question. The medical findings of the approved physician cannot be overturned by a consular officer, and thus if the physician deems the applicant to be medically ineligible for an immigrant visa to the United States, that decision would be binding and non-negotiable. (AILA.18.1)
The immigrant visa interview is by far the most important step of the process to gain permanent residence in the United States. All applicants must report to the consular post at the time of the interview appointment. (ALIA 23.5) Any children accompanying the primary applicant who are under the age of 14 are not required to attend, except in the circumstance where the primary applicant is 14 or under themselves, in which case they must be present for the appointment. Failure to attend the appointment by the foreign national or any of the individuals accompanying the foreign national may result in the termination of the application process and the visa may be refused. (AILA.23.5)
Prior to the interview, the applicant should also check the website of the respective embassy or consulate to verify what items, if any, are prohibited from being carried into the building.
In addition to the sealed medical examination results (if the physician does not deliver the findings directly to the consular post), the following documents must be brought to the immigrant visa interview for each applicant:
The foreign national does have the ability to reschedule their immigrant visa interview in advance, as the original appointment was made by the NVC without input regarding applicant availability, however, applicants should be prepared to wait a significant period of time for the next available time slot if they decide to reschedule the appointment. (AILA.25.3)
The content of the immigrant visa interview will almost entirely be based on the applicants’ responses to the prompts on Form DS-260 [Electronic Application for Immigrant Visa and Alien Registration], as well as the information submitted on the other supporting documents listed above. (AILA.24.1) All applicants will be required to take an oath affirming that all statements provided during the interview are indeed factual. (AILA.24.1)Throughout the interview, the consular officer will be looking to confirm that all verbal answers match the submitted information on the application form and accompanying documents. (AILA.24.4) To avoid any unnecessary hang-ups, it is recommended that prior to the interview, all applicants refresh their familiarity with the information they provided on Form DS-260 and all other documents.
The role of the consular officer in this interview, to be clear, is not to readjudicate whether the visa petition of the applicant should have been approved, as that is the job of the NVC and the DOS, but rather confirm that the information that the applicant has provided is reliable and factual, and grant the foreign national the preference status previously accorded to them in their visa petition. (AILA.25.1) If the consular officer is given any reason to believe that one or more of the documents is not authentic or has been altered in any way, they may request additional information to verify the accuracy of the material presented by the document.
Furthermore, the consular officer will be trying to evaluate whether the foreign national or any of their dependents pose a risk to becoming a public charge. Typically formal proof of permanent future employment that provides an adequate income for the foreign national and their family is sufficient to confirm this will not be the case. Other factors that may be included in this consideration are age, health, family status, financial status and resources, and education, although no single factor may wholly influence this determination. (AILA.32.4)
If for any reason the applicant arrives at the immigrant visa interview and it is determined that they have not brought all of the necessary documents along with them, the applicant should nevertheless pay the appropriate processing fee (if one is requested) and partake in the scheduled interview. If the consular officer finds the interview satisfactory in all other aspects, the consular officer still must refuse the visa on the grounds of the missing document(s). However, the applicant may then mail in or personally deliver the missing document(s) as well as the Issuance Fee to the consular post. The formerly missing documents will then be evaluated by the same consular officer, and if the documents are found to be similarly satisfactory, the visa will be issued immediately. If the applicant is unable to present or later deliver one or more documents for the immigrant visa interview due to factors outside of their control (which does not include inconvenience or expense), the consular officer may allow the foreign national to submit other documents in lieu of the originally requested documents. (AILA.25.4)
Similarly, if the foreign national believes that any of the documents they must submit are not authentic or are counterfactual, perhaps because of local corruption or other sorts of impropriety, a written explanation should be included along with the documents if possible and these concerns should be brought to the attention of the consular officer during the interview. (AILA.33.3)
In all cases, the consular officer must come to a definite decision — to either issue or refuse the visa. (AILA.25.2)
If the consular officer decides to refuse the foreign national an immigrant visa, the foreign national has the right to submit further documentary evidence to refute this verdict within a calendar year of the original decision. Once the additional evidence has been submitted, the case will be reconsidered and a final decision will be communicated. (ALIA 41.1)
If the consular officer decides to issue the immigrant visa — congratulations! — your documents will be returned to you either by courier service or at a specified pickup time.
If the dependents of the foreign national are not applying to immigrate to the United States at the same time as the foreign national, but plan to apply for immigrant visas at a later point in time, the consular post may schedule an informal interview with these dependents to determine whether they may be eligible for a visa in the future. (AILA.36.2) It should be noted that any findings made during this informal examination are not binding in any way, as eligibility for the immigrant visa can only be determined during the formal interview at the consular post. Similarly, if a dependent is found to be eligible during the informal examination, this is not a guarantee that this individual will still be eligible at the time of the formal interview as well. Regardless of the outcome of this informal examination of the dependents, the foreign national will be notified of the result by the consular post and will be required to acknowledge receipt of this information. (AILA.36.3)
Furthermore, although it is not necessary for dependents of the foreign national to pursue immigrant visa processing through the same consular post, it has been observed that applications of dependents who have gone through the same consular post as the primary applicant have received results in a far more expedient manner. (AILA.37.3)
If the dependent wishes to adjust status in the U.S., he/she needs to wait until the primary applicant finishes immigrant visa processing and enters the U.S. to file I-485.
If a child is born to the foreign national after the issuance of the immigrant visa, a subsequent immigrant visa is not required for the newborn, as long as the child will accompany the foreign national to the United States and the parent(s) will apply for the child’s admission while their visa is still valid. (AILA.38.3)
It is important to note that children can only be processed as a dependent of the foreign national if they are unmarried and under the age of 21. If the primary applicant has a child who is in danger of “aging out” (turning 21), they must contact the NVC immediately to request that their immigrant visa petition be expedited; the only expediting requests that the NVC will honor are if a child is in danger of aging out or a member of the foreign national’s family unit is gravely ill and would benefit from receiving medical care in the United States. (AILA.3.4)
Similarly, the primary applicant must also contact their consular post if they have a child who will turn 21 before the scheduled immigrant visa interview, and if the visa has already been approved and issued, then the child must immigrate to the United States before the day they turn 21 or else their visa will become invalid. (ALIA 36.1)
Once the immigrant visa has been issued, the visa will generally be valid for six months. The primary exception to this is that immigrant visas are only valid until sixty days prior to the expiration of the individual’s passport.
If the foreign national does not travel to the United States and use their immigrant visa within its period of validity, they may be able to apply for the reissuance of their visa as long as they prove to the satisfaction of the consular post that they were unable to use the immigrant visa due to reasons beyond their control. In the process of seeking reissuance of their visa, the foreign national will once again have to prove they are eligible and repay the required fees. (AILA.39.3)Even with the approval of the consular post, the reissuance of a visa is further contingent on whether the immigrant visa number originally allocated to the foreign national remains available, as at the end of the fiscal year, the Department of State “recaptures” these unused immigrant visa numbers and reallocates them to other applicants. (AILA.39.4)
When the foreign national arrives at their respective United States port of entry, they must have all components of their issued immigrant visa prepared. The components of the immigrant visa include the physical visa entered into the passport of the foreign national, a printed copy of their Form DS-260 [Electronic Application for Immigrant Visa and Alien Registration], and a copy of each document that had been required for the application. Together, these comprise the “Visa Packet” delivered to the successful applicant by the consular post, which should not be unsealed until opened by a processing agent at the U.S. port of entry. Upon successful admission to the United States, the foreign national will surrender their visa to the immigration inspector. (AILA.42.4)
Within 45 days of arrival, the foreign national will receive their Permanent Resident Card (“Green Card”) at the address they previously indicated on Form DS-260 [Electronic Application for Immigrant Visa and Alien Registration]; if the Permanent Resident Card is not received in this timeframe, then it is recommended that the individual contact the USCIS National Customer Service Center. (AILA.43.1)
If the foreign national requested a Social Security Number on their Form DS-260, their social security card should be received in the mail within 21 days of arrival into the United States; if the card is not received in that timeframe or the individual chose not to request an SSN on their Form DS-260, then the individual must visit their local Social Security center and bring proof of identity and employment. (AILA.43.3&4)