Why do I Have to Consular Process?

Hello again, everyone. This is Erin Cobb, an immigration lawyer here at Chicago-based immigration law firm Kriezelman Burton & Associates. To pick up from where we left off in our last post, today we’re going to talk about why some people have to consular process.

So, you are meeting with your immigration lawyer because you are finally eligible to apply for your green card, but your lawyer tells you that you have to leave the country and consular process in order to apply for citizenship. Why do you have to leave the country? 

Generally, there are two different ways to apply for your green card. One of them is called adjustment of status, which is all completed within the United States. The other process is consular processing, which requires applications to leave the country and apply through the U.S. consultant in their home country.

There are two big reasons why someone must consular process. The first is how you enter the country. Only people who have entered the U.S. with a cist with parole, which is a special entry for a limited purpose and limited period of time, or otherwise presented themselves for inspection, are eligible to stay here and adjust status. Everyone else must consular process. If a person entered the U.S. without inspection, they must go back to their home country to consular process. 

Now, there is one very big and very good exception to this rule. If you had a visa petition filed for you for your parent, or sometimes for your spouse, prior to April 30th of 2001, you may qualify for a special exemption that we call 245(i) and would be able to adjust your status in the U.S. 

The second reason that some people must consular process is that they are not of status when they apply for their green card. Examples include:

• An employer petitioning for you
• A U.S. citizen brother or sister petitioning for you or your family
• A lawful permanent resident spouse or parent petitioning for you

If you do not have status on the day that any of the above petition for you for your green card, you will have to consular process. Again, there are two large exceptions to this. If you are a U.S. citizen’s spouse and they are petitioning for you, or if your U.S. citizen adult children are petitioning for you, you may be considered what is called an immediate relative and may be able to stay in the U.S. and apply for your green card even without having status.

The second exception is 245(i), in which a visa petition was filed for you or your spouse or parent prior to April 30th, 2001. You can pay a penalty fee and adjust your status in the U.S. without having to go back to your home country to apply. 

Hopefully, this has shed a little bit of light on why you may be required to consular process. If you’d like to learn more about immigration law, or would like more information and explanations on common terms related to immigration, please check out our other blog posts. If you need an immigration lawyer, please contact the offices of Kriezelman Burton & Associates. You can get in touch with us by phone or by completing our online contact form.