I am a U.S. citizen and have been living outside the U.S. for almost four years for study. I got married a year ago and would like to apply for my husband to immigrate. My question is, can I apply for him while I am outside the U.S.? I have not finished my study, and it is hard for me to go back to the U.S. just to file the forms. Continue reading “Issues for U.S. Expats Filing a Form I-130, Immigrant Petition for Alien Relative”
Reproduced below are instructions distributed by the U.S. Citizenship and Immigration Services (USCIS) Beijing Field Office for filing the Form I-130, Petition for Alien Relative. These local instructions supplement the official instructions on the USCIS website. Continue reading “USCIS Beijing Filing Instructions for Form I-130, Petition for Alien Relative”
This article covers same-sex spouses’ eligibility for U.S. immigration benefits in light of the Supreme Court decision holding the Defense of Marriage Act (DOMA) to be unconstitutional. Continue reading “Same-Sex Spouses: U.S. Immigration Benefits Eligibility (Updated Aug. 3)”
In an historic ruling, the U.S. Supreme Court has held that same-sex spouses are eligible for the same federal benefits—including immigration benefits—as heterosexual spouses. (I’ve blogged about it here.) Now, I’d like to explore what this means specifically for those applying for immigration benefits at the U.S. Embassy in Beijing and the U.S. Consulates in China that process visa applications, which are located at Chengdu, Guangzhou, Shanghai, and Shenyang. Continue reading “Visa Applications for Same-Sex Spouses at the U.S. Embassy and Consulates in China”
This article briefly describes the family-based permanent residence classifications available under U.S. immigration law. A lawful permanent resident is a foreign national who has been granted the privilege of permanently living and working in the United States. Continue reading “U.S.: Quick Reference to Family-Sponsored Immigrant Visas”
Everybody loves a love story – everybody it seems, except the U.S. Citizenship and Immigration Services. In our post-9/11 world, immigration has become increasingly tough on, of all groups, widows.
A foreigner who marries a U.S. citizen is entitled to become a U.S. resident. But as CBS’ 60 Minutes reports, USCIS wants to deport several hundred widows who had been married to American citizens when the Americans died.
USCIS claims basically that a widow is not a wife, and that if the widow did not complete the process to become a U.S. resident while her husband was alive, she cannot remain in the country. This is the subject of ongoing litigation.
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 to the USCIS Ombudsmanâ€™s recommendations for reform.
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 employerâ€™s H-1B petition before the worker applies for a visa at a U.S. consulate. Similarly, USCIS must approve a U.S. husbandâ€™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. And consular officers have instructions to return petitions to USCIS for revocation where fraud, misrepresentation, or ineligibility is likely to lead to revocation.
If USCIS concurs with the consular officerâ€™s reasoning, USCIS issues a â€œNotice of Intent to Revokeâ€ to give the petitioner an opportunity to respond. 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.
Ombudsmanâ€™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 didnâ€™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 websiteâ€™s information related to revocation of petitions, but it appears that the update has not yet been posted.
Ombudsmanâ€™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. USCISâ€™ 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. 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 Departmentâ€™s Visa Office has reminded Consulates that they â€œshould not attempt to readjudicate petitionsâ€ already decided by USCIS. â€œRather, 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€ 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. 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.
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.
 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).
 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).
 INA Â§ 205; 8 C.F.R. Â§ 214.2(l)(9).
 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).
 Cable, DOS, 01-State-121801 (July 13, 2001).
 8 C.F.R. Â§ 205.2(b); 8 CFR 214.2(l)(9)(iii).
 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. Â§ 214.2(l)(7).
 Cable, DOS, 01-State-121801 (July 13, 2001).
 Minutes of AILA-DOS Liaison Meeting (Oct. 2007).
Today was the fourth time in four years that U.S. citizen fathers have told me that the Beijing office of U.S. Citizenship and Immigration Services (USCIS) has refused to accept immigrant visa petitions (Forms I-130) on behalf of their children.
On all four occassions, USCIS stated reason for the refusal was that the fathers failed to submit photos and Forms G-325A (biographic information) with the petitions. Each time, I’ve contacted USCIS to explain that such materials aren’t required by the official instructions. (A spouse’s immigrant petition does need these materials). And each time, USCIS has agreed to follow the official instructions, accepting the re-submitted petitions.
These four fathers must only be a drop in the bucket. Many others have undoubtedly been refused for the same erroneous reason. If these fathers are able to follow USCIS official instructions, USCIS Beijing should train its staff to do so too.
From: Gary Chodorow
Sent: Tuesday, April 01, 2008 8:06 PM
Subject: Message from a Nitpicky Lawyer
Dear USCIS Communications Office:
I’ve read your recent announcement that “[e]ffective immediately, all petitioners filing stand-alone Form I-130s [Petitions for Alien Relatives] must file their petitions with the Chicago Lockbox (emphasis added). USCIS Press Room, USCIS Revising Filing Instructions for Petition for Alien Relative: Form I-130s to Be Filed with the Chicago Lockbox (Mar. 21, 2008); USCIS Immigration Forms, Petition for Alien Relative (Feb. 19, 2008).
I am concerned that your announcement may mislead petitioners residing abroad. The Form I-130 instructions at page 4 continue to allow such petitioners to file their petitions abroad: “Petitioners residing abroad: If you live in Canada, file your petition at the Vermont Service Center. Exception: If you are a U.S. citizen residing in Canada, and you are petitioning for your spouse, child, or parent, you may file the petition at the nearest U.S. Embassy or consulate, except for those in Quebec City. If you reside elsewhere outside the United States file, [sic] your relative petition at the USCIS office overseas or the U.S. Embassy or consulate having jurisdiction over the area where you live. For further information, contact the nearest U.S. Embassy or consulate.”
This is a small detail, but amending your announcement may save numerous petitioners the cost and delay associated with filing their petitions in the wrong place.
Very truly yours,
Attorney at Law