U.S. Immigration and Nationality Law
USCIS admits that processing times for I-130s for immediate relatives are skyrocketing. Here’s what their historic data shows:
| FY 2015 | FY 2016 | FY 2017 | FY 2018 | FY 2019 (up to Mar. 31) |
| 6.1 mo. | 6 mo. | 7.7 mo. | 9.7 mo. | 10.3 mo. |
If you were born in Mainland China and are applying for a U.S. green card, you will need to submit a China birth certificate. That’s true regardless of whether you are filing a Form I-485, Application to Adjust Status, with USCIS or are applying for an immigrant visa at a U.S. consulate abroad.
Continue reading “What Type of China Birth Certificate Is Required for U.S. Immigration?”
There are backlogs in U.S. Citizenship and Immigration Services (USCIS) processing of applications and petitions. This leaves businesses and families to wonder what the processing times are. In March 2018, the agency began a pilot program to calculate processing times for some cases in a new way. Continue reading “How USCIS Calculates Processing Times for Petitions and Applications”
USCIS has issued a final rule increasing filing fees for most immigration applications and petitions. The new fees go into effect December 23, 2016. USCIS explains that fees are increasing “for the first time in six years, by a weighted average of 21 percent.” Continue reading “USCIS Filing Fees Increase”
Since our firm’s offices are in China, we are often asked by lawyers in the U.S. to work as local counsel for U.S. visa applications at the U.S. Consulates in Beijing, Guangzhou, Shanghai, Chengdu, and Shenyang. We make it our business to know each consulate’s policies, practices, and procedures. Here are the basic tips we give most frequently to stateside lawyers: Continue reading “Special Considerations for Visa Processing at U.S. Consular Posts in China”
According to the U.S. State Department, the top five reasons that immigrant visa applications are denied due to applicants’ failure to bring required documents include: Continue reading “Top 5 Reasons Immigrant Visa Applications Are Denied”
Here are the top eight things HR managers should know about U.S. immigration law: Continue reading “Eight Things HR Managers Should Know about Immigration Law”
Clients often ask whether to qualify for an immigrant visa (i.e., a green card) they must intend to move to the U.S. permanently. Take, for example, a father who owns a business in China. Can he apply for an EB-5 investor green card so that his teenage son can accompany him to the U.S., even if the father doesn’t intend to reside there? Continue reading “Must an Immigrant Visa Applicant Intend to Live in the U.S. Permanently?”
Charles Oppenheim, Chief of the U.S. State Department’s Visa Control and Reporting Division tells the American Immigration Lawyers Associaton that in August the priority date cut-off for EB-3 China will retrogress seven years to June 1, 2004. Why the big surprise in the August Visa Bulletin? Continue reading “Surprise: EB-3 China Priority Dates Retrogress in August”
U.S. law provides for both immigrant and nonimmigrant visas. Immigrant visas (i.e., permanent resident status or green cards) allow for indefinite residence in the United States. Most immigrant visas are issued on the basis of family sponsorship or through employment (including investment).
In contrast, nonimmigrant visas allow entry only for a limited period an only to carry out specified activities. There are 24 major nonimmigrant visa categories, and 87 specific types of nonimmigrant visas issued. Each NIV category is identified by a particular letter, starting with “A” and currently using up the English alphabet through the letter “V.” The NIV application process is designed to be quicker and less cumbersome than that for immigrant visas.
This article briefly describes each employment-based permanent residence category under U.S. immigration law. Continue reading “U.S.: Quick Reference to Employment-Based Immigrant Visas”
Frankly, I’d forgotten that USCIS announced in September 2010 that there would be a new “Immigrant Visa DHS Domestic Processing Fee” of $165. (See the Federal Register). USCIS is now beginning to collect it. Continue reading “U.S.: New USCIS Immigrant Fee”
Read our new article here.
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U.S. Citizenship and Immigration Services (USCIS) has announced it is raising fees an average of 10%, effective Nov. 23, 2010. The agency is primarily fee-based, with about 90% of its budget coming from applicants and petitioners seeking immigration benefits. The agency justifies the fee increase as a way to recover costs after fiscal year 2008 and 2009 revenue was much lower than projected, due in large part to increased migration during the global recession.
Highlights of the new fees include:
* Form I-129, Petition for Nonimmigrant Worker: increased from $320 to $325.
* Form I-129F, Petition for Alien Fiancee: reduced from $455 to $340.
* Form I-130, Petition for Alien Relative: increased from $355 to $420.
* Form I-485, Application to Adjust Status: increased from $930 to $985.
* Form I-526, Petition for Alien Entrepreneur: increased from $1,435 to $1,500.
* Form I-751, Petition to Remove Conditions of Residence: increased from $465 to $505.
* Form N-400, Application for Naturalization: not changed, $595.
There will also be a new fee of $165 for Immigrant Visa Domestic Processing. This fee will apply to applicants for immigrant visas. It is designed to recover the costs of USCIS staff time to process, file, and maintain the visa package and the cost of producing the permanent resident card. The U.S. Department of State will collect the fee on behalf of USCIS, although the precise logistics have not yet been announced.
I previously reported on fee increases by the U.S. Department of State (DOS) for nonimmigrant visas effective June 4, 2010.
Now, DOS has also issued an interim final rule increasing fees for immigrant visas and certain American Citizen Services, effective July 13. DOS justifies the changes by citing an independent cost of service study’s findings that the U.S. Government is not fully covering its costs for providing these services.
Here are the changes for the most common fees:
| NEW CONSULAR FEES EFFECTIVE JULY 13, 2010 | ||
| PRIOR FEE | NEW FEE | |
| Immigrant Visa Fees | ||
| IV Application Processing Fee | ||
| Family-based immigrant visa | $ 355.00 | $ 330.00 |
| Employment-based immigrant visa | $ 355.00 | $ 720.00 |
| Other immigrant visas (SIVs, DVs, etc.) | $ 355.00 | $ 305.00 |
| IV Security Surcharge | $ 45.00 | $ 74.00 |
| Domestic (NVC) review of Affidavit of Support | $ 70.00 | $ 88.00 |
| Determining Returning Resident Status | $ 400.00 | $ 380.00 |
| Passport Fees | ||
| Additional passport visa pages | – | $ 82.00 |
| Consular Report of Birth Abroad | $ 65.00 | $ 100.00 |
| Renunciation of U.S. Citizenship | – | $ 450.00 |
USCIS has announced that applicants may experience up to an eight-week delay in the delivery of their permanent resident cards while USCIS upgrades its card production equipment.
If you have recently been admitted to the U.S. as an immigrant, you will still be able to travel and seek employment in the U.S. Your immigrant visa stamped by USCIS at the time of admission is valid evidence of lawful permanent resident (LPR) status for one year from the date of admission.
Recently, USCIS Service Center Operations offered an opinion on whether it’s possible to file a second visa petition if the first one was denied and is currently on appeal or a motion to reopen is pending: Continue reading “Two Bites at the Apple? Filing Multiple Visa Petitions”
Our law firm is often retained to represent clients where a U.S. Consulate has returned the visa petition to USCIS to consider revocation. This process is slower and less transparent than it should be. Still, this update explains that recently there have been some minor improvements in the process. These improvements were mentioned by Jonathan R. Scharfen, Acting Director of USCIS, in a recent response[1] to the USCIS Ombudsman’s recommendations for reform.[2]
Background
Generally, USCIS approval of a visa petition is a prerequisite for the issuance of a visa by a U.S. consulate abroad. For example, USCIS must approve an employer’s H-1B petition before the worker applies for a visa at a U.S. consulate. Similarly, USCIS must approve a U.S. husband’s immigrant visa petition before the wife can apply for an immigrant visa at a U.S. consulate.
Even after a petition has been approved, USCIS can revoke it for good cause.[3] And consular officers have instructions to return petitions to USCIS[4] for revocation where fraud, misrepresentation, or ineligibility is likely to lead to revocation.[5]
If USCIS concurs with the consular officer’s reasoning, USCIS issues a “Notice of Intent to Revoke†to give the petitioner an opportunity to respond.[6] Once the response from the petitioner is received, USCIS will either reaffirm the petition and send it back to the consulate for processing, or revoke the petition. A petitioner may appeal revocation to the Administrative Appeals Unit.
Ombudsman’s Recommendations Accepted by USCIS
* USCIS Receipt Notice: The Ombudsman recommended that USCIS issue a receipt notice to the petitioner upon receipt from the Consulate of a returned petition. Happily, USCIS has implemented this recommendation. It can take 6-12 months or more between from when a Consulate returns a petition to when USCIS to issue a Notice of Intent to Revoke a returned petition. Previously USCIS didn’t issue receipt notices to acknowledge they had received the returned petitions. Clients were left clueless about the status of their cases.
* USCIS Website Improvements: USCIS has agreed to improve its website’s information related to revocation of petitions, but it appears that the update has not yet been posted.
Ombudsman’s Recommendations Rejected by USCIS
* Uncertain Processing Times: The Ombudsman recommended that USCIS create standard processing times for consideration of revocation of returned petitions, and report current processing times online. USCIS responded that it would not be practical to establish standard processing times because some cases require lengthy fraud investigations, whereas others do not. USCIS’ response is, in my opinion, disappointing. Setting standard processing times are helpful for USCIS service centers to set work priorities and for stakeholders to set reasonable expectations as to how long their cases will take. Moreover, as for other types of cases that USCIS handles, if a fraud investigation is needed, then an exception can be made to the standard processing time.[7] Standard processing times would also, hopefully, reduce the current processing times for consular return cases. Currently, with consular return cases taking a year or more, clients must consider the faster option of filing a new petition. This creates extra work for USCIS, even though USCIS or the Consulate may refuse to act on the new case before USCIS completes decided whether or not to revoke the old petition.
Other Problems with the Consular Return Process
* Readjudication by Consulate: The State Department’s Visa Office has reminded Consulates that they “should not attempt to readjudicate petitions†already decided by USCIS. “Rather, a consular officer should only seek revocation of the petition if the officer knows, or has reason to believe, that the petition approval was obtained through fraud, misrepresentation or other unlawful means, or that the beneficiary is not entitled to the status conferred by the petition. Petitions generally should not be returned unless the post uncovers new information not known to [USCIS] at the time of petition approval.â€[8] Despite this reminder, some consular officers seem to return petitions to USCIS when it is not warranted, thereby inconveniencing applicants and creating additional work for USCIS.
* Consular Notice of Intent to Return Petition to USCIS: Currently, a consular officer who decides to return a petition to USCIS needs only to provide notice of this fact to the visa applicant. The officer need not explain the reason why the petition is being returned.[9] Our recommendation is that the officer should provide notice to the visa applicant of the reason why and give the applicant a chance to provide additional evidence that the petition should not be revoked. In some cases, this will be more efficient than waiting a year or more for USCIS to decide whether to revoke the petition.
Conclusion
Despite recent improvements, this legal process remains slower and less transparent than it should be. Counsel should help the visa applicant to be prepared at the time of the consular interview to answer all relevant questions by the consular officer in order to minimize the risk that the officer will return the petition to USCIS with a recommendation for revocation. If there are problems at the interview, it may be wise to contact the Consulate to try to resolve the problems before the petition is returned to USCIS. If the petition is returned, it may be best to both respond to the Notice of Intent to Revoke and consider filing a new petition.
[1] Memo by Jonathan R. Scharfen, USCIS Acting Director, Response to Recommendation #33, Recommendation on the Processing of Petitions That Are Returned by the U.S. Department of State for Revocation/Revalidation (May 23, 2008).
[2] Memo by Prakash Khatri, USCIS Ombudsman, Recommendation on the Processing of Petitions That Are Returned by the U.S. Department of State for Revocation/Revalidation (Aug. 24, 2007).
[3] INA § 205; 8 C.F.R. § 214.2(l)(9).
[4] Consulates return immigrant petitions (including Ks and Vs) to the National Visa Center and nonimmigrant petitions to the Kentucky Consular Center. In either case, petitions are then routed to the appropriate USCIS offices. Forms I-130, Petitions for Alien Relatives, initially filed with an overseas USCIS office are returned directly to that office by the Consulate. Minutes of AILA-DOS Liaison Meeting (Oct. 2007).
[5] Cable, DOS, 01-State-121801 (July 13, 2001).
[6] 8 C.F.R. § 205.2(b); 8 CFR 214.2(l)(9)(iii).
[7] For example, according to USCIS regulations, L-1 petitions should be adjudicated within 30 days. However, where a fraud investigation is needed, USCIS makes an exception to this time limit. 8 C.F.R. § 214.2(l)(7).
[8] Cable, DOS, 01-State-121801 (July 13, 2001).
[9] Minutes of AILA-DOS Liaison Meeting (Oct. 2007).