There is nothing intuitive about which U.S. consulate has primary jurisdiction over an immigrant visa application. Nor is it easy for an applicant to consular process through a consulate that is not required to accept jurisdiction. This article will review the current policies and procedures around consular jurisdiction, including situations when the applicant would experience a hardship or when the United States does not have diplomatic relations with the applicant’s country.

Consulate Jurisdiction

Beneficiaries on a Form I-130, Petition for Alien Relative, must select the city and country where they will apply for an immigrant visa. The form contains the following warning: “Choosing a U.S. Embassy or U.S. Consulate outside the country of the beneficiary's last residence does not guarantee that it will accept the beneficiary's case for processing. In these situations, the designated U.S. Embassy or U.S. Consulate has discretion over whether or not to accept the beneficiary's case.” The Instructions to the I-130 do not provide any guidance as to the options the beneficiary has in choosing a U.S. consulate or what to do if selecting one outside his or her current or last residence.

The Department of State (DOS) regulations set forth the beneficiary’s four selection options. According to 22 CFR § 42.61(a), the intending immigrant may apply for a visa at one of the following U.S. consulates: (1) the one in the country where the applicant is currently residing; (2) the one in the country where the applicant last resided prior to entering the United States if residing here; (3) the consulate in the country where the applicant is physically located and intends to remain throughout the processing; or (4) any other consulate that will accept jurisdiction of the case as a matter of discretion.

Not included among the options is the U.S. consulate in the country where the applicant is a citizen or national if they are not currently residing or last resided there. This is based on DOS’s opinion that “a consular officer assigned to the country of the applicant’s residence [or last residence] is in the best position to resolve questions relating to visa eligibility.” 9 Foreign Affairs Manual (FAM) 504.4-8(A)(a). The consular officer’s familiarity with local documents and the “culture, language, and legal and political framework” in the country where the applicant is residing or last resided explains why that is the only consular office required to accept the case for processing. Nevertheless, a consulate must accept jurisdiction of a case where the applicant is a citizen or a national of the consular district, regardless of the applicant’s last residence, when directed to do so by DOS. 9 FAM 504.4-8(B)(b).

Eligibility for options 1 or 2 turns on where the immigrant visa applicant is residing. The word “residing” is a legal term defined in Immigration and Nationality Act (INA) § 101(a)(33). Residence is defined as the person's “principal actual dwelling place in fact, without regard to intent.” 

Whether one is residing versus simply physically present does not turn on how long they have been in that country, although the longer the stay, the more likely it is that they can establish “residency.” Residence is more than a temporary presence, a vacation, or a brief stay, but attendance at school for an extended period may be considered as residence. The U.S. Citizenship and Immigration Services (USCIS) indicates that the following documentation may be used to evidence residency: marriage certificate; property rental leases, property tax records, and payment receipts; utility bills; automobile registration; professional licenses; employment and income records; income tax records; school attendance; and vaccination and medical records. USCIS Policy Manual vol. 12, ch. 2, pt. E(1). Whether the applicant ever intended to establish some legal immigration status while residing there is not relevant.

Option number 3 turns on where the applicant is physically present. According to DOS, the consulate must accept jurisdiction if the applicant is physically present there, although not a resident, “if the applicant expects to remain in the consular district throughout the several months that it normally takes to process an application and can legally do so.” 9 FAM 504.4-8(C)(a). DOS regulations contain similar language and require that the applicant be “able to reside in that country” during the application process. 22 CFR § 42.61(a).

Some applicants may have no fixed address, such as crewpersons. DOS will look at the following factors to determine the appropriate consulate:

• The residence of the applicant’s spouse and/or children;
• The home port of a vessel or the location of the company employing the applicant; and
• The country in which the applicant has resided the longest as an adult or the country of the applicant’s nationality.

9 FAM 504.4-8(C)(d).

In situations where the principal applicant and his/her spouse are applying together for an immigrant visa, and they currently reside in different consular districts, DOS states that “it would be preferable for the couple to apply where the principal applicant resides.” However, if that is inconvenient, the couple could select the consulate where the derivative spouse resides. 9 FAM 504.4-8(C)(e).

Role of the NVC

After approving the I-130 petition, the USCIS will forward it to the DOS National Visa Center (NVC). The NVC decides which consulate will be assigned the case and where the immigrant visa interview will take place based on the applicant’s current or last country of residence. If the applicant resides in the United States, the NVC will make the assignment based on the applicant’s last foreign residence. 9 FAM 504.4-9(c).

Applicants can request to switch the designated consular post after it has been assigned. In those cases, the NVC will ask for proof of the applicant’s new residency, including their current address. Some consulates require specific documentation to establish residency and eligibility to process at their post. The NVC would know what specific documentation is required and what forms of proof the applicant must submit. 9 FAM 504.4-9(c)(3).

Role of the Consulates

After the NVC forwards the case to the designated consulate, it loses jurisdiction. Any further change in location of the interview will need to be worked out between the applicant, the designated consulate, and the preferred consulate. If, for example, the applicant has moved and is residing in a different country, they would first reach out to the preferred consulate, submit proof of legal residency in its jurisdiction, and request that it take jurisdiction. There is no prescribed form or format for such a request; most consulates prefer that communication be made by email to a designated address. If the consulate agrees, it will request transfer of the approved petition and visa application from the designated consulate.

Hardship Cases

A consulate may accept jurisdiction if the applicant is currently residing in the United States and can establish hardship if he or she were forced to return to the country of last residence. 9 FAM 504.4-8(D). Hardship cannot be simply inconvenience, such as absence from work or economic factors. The following are considered examples of hardship: widespread civil unrest or war; inability to travel long distances because of physical infirmity or advanced age; and the absence of a visa-issuing post in the applicant’s country of last residence. 9 FAM 504.4-8(D)(c).

The applicant will need to reach out directly to the preferred consulate—rather than going through the NVC—when requesting that it accept jurisdiction based on hardship. Include documentation of the hardship and explain why the applicant is requesting to process there rather than at the designated consulate. The applicant may need to reach out to several consulates, perhaps simultaneously, before being successful.

Homeless Cases

Applicants residing in a country with which the United States does not maintain diplomatic relations or where the consular section is closed because of unstable or insecure conditions are called “homeless” visa applicants. 9 FAM 504.4-8(E). If the applicant is residing in a third country, they will process through the U.S. consulate in that country, assuming the applicant has the permission of that country’s government to remain there legally for the period necessary to complete processing. Other applicants, especially those residing in the United States, will process at a consulate designated by DOS. The NVC will make the appropriate assignment for immigrant visa applications designated as homeless. 

The following are nationalities designated as homeless and the consular posts assigned to accept them:

• Eritreans → Addis Ababa and Nairobi;
• Iranians → Abu Dhabi, Ankara, and Yerevan;
• Russians → Warsaw;
• Libyans → Tunis;
• Somalis → Nairobi;
• South Sudanese → Nairobi;
• Sudanese → Cairo;
• Syrians → Amman, Beirut (for Palestinians with Syrian travel documents);
• Ukrainians → Frankfurt, Warsaw;
• Venezuelans → Bogota;
• Yemenis → Djibouti.

Conclusion

Make sure your client selects the appropriate U.S. consulate when completing the I-130 so that they will not experience difficulties later when they consular process. Understand the client’s various options at this stage and at later stages, should events require a change in designation. Know how to communicate with the NVC or the appropriate consulates to facilitate such a transfer of the application when hardships arise.