USCIS will no longer accept and adjudicate Forms I-130, Petitions for Alien Relatives, at its international field offices.[1] The announcement was made Jan. 31 and effective the following day. This follows a period beginning Mar. 2019 when USCIS began to close most of its international offices. Still, the Trump administration should be graded “F” for failure to consult with the expat community and provide advance notice of this change.
So, now, if the petitioner resides abroad, you may[2]:
- File by mail at the USCIS Dallas Lockbox facility. The case will then be forwarded to one of several USCIS Service Centers for processing. A receipt notice will be issued by mail within about two weeks of filing. Current processing times are posted at www.uscis.gov;
- File online using the USCIS website. Most law firms find that glitches in the online filing system make this the slowest option; or
- Request to file at a U.S. Embassy or Consulate in certain limited circumstances, as described below.
In light of increasing processing times for domestic I-130 processing, filing at a U.S. Embassy or Consulate is likely to be preferable in circumstances where that is an option.
Which I-130s can be filed at a U.S. Embassy or Consulate?
USCIS has delegated to the State Department authority to accept and adjudicate, as a matter of discretion, the following types of I-130s[3]:
- An I-130 for an immediate relative (U.S. citizen’s spouse, a U.S. citizen’s unmarried child under the age of 21, or a parent of a U.S. citizen who is 21 years of age or older) in limited “exceptional circumstances”[4]; or
- An I-130 for an immediate relative filed by U.S. citizen military service member.
What are the physical presence and residence requirements for filing an I-130 at a U.S. Embassy or Consulate?
- The petitioner and the beneficiary must be physically present in the district.[5]
- The beneficiary must be to remain in the country for the time it normally takes to process the visa.[6]
- The petitioner is not required to be a resident of the consular district, but residence may be considered as a factor for acceptance under both the exceptional circumstances and blanket filing authorizations. A consular officer will not accept an I-130 form a petitioner based in the U.S. who travels overseas for the express purposes of trying to circumvent the processing times associated with domestic filings.[7]
- The beneficiary need not be a resident of the consular district.[8]
What if the petitioner has already filed electronically or domestically?
A consular officer will not accept a local filing abroad if the petitioner has already filed a Form I-130 domestically for the same beneficiary. If exigent circumstances exist, the petitioner should request expedited processing for the electronic or domestically-filed petition.[9]
What is the definition of “exceptional circumstances”?
If a consular section encounters a case they believe meets the exceptional circumstance criteria outlined below, then the Consular Chief or another designated consular officer may exercise discretion to accept and adjudicate the filing.[10]
USCIS has removed the requirement that the consular officer seek and receive case-specific permission from USCIS in advance of deciding tot accept an I-130.[11]
The following are “examples” of the types of exceptional circumstances where consular officers may opt to accept I-130 immediate relative petitions:[12]
- U.S. Military emergencies: A U.S. service member, who is abroad but who does not fall under the military blanket authorization for U.S. service members stationed abroad on military bases, becomes aware of a new deployment or transfer with little notice. This exception generally applies in cases where the U.S. service member is provided with exceptionally less notice than would normally be expected.
- Medical emergencies: A petitioner or beneficiary is facing an urgent medical emergency that requires immediate travel.
- Threats to personal safety: A petitioner or beneficiary is facing an imminent threat to personal safety. For example, a petitioner and beneficiary may have been forced to flee their country of residence due to civil strife or natural disaster and are in precarious circumstances in a different country outside of the United States.
- Close to aging out: A beneficiary is within a few months of aging out of eligibility.
- Petitioner has recently naturalized: A petitioner and family member(s) have traveled for the preference immigrant visa interview, but the petitioner has recently naturalized and the family member(s) require a new petition based on the petitioner’s citizenship.
- Adoption of a child: A petitioner has adopted a child abroad and has an imminent need to depart the country. This type of case should only be considered if the petitioner has a full and final adoption decree on behalf of the child and the adoptive parent(s) has had legal custody of and jointly resided with the child for at least 2 years.
- Short notice of position relocation: A U.S. Citizen petitioner, living and working abroad, received a job offer in or reassignment to the United States with little notice for the required start date.
- Other: The Consular Section may exercise its discretion to accept local Form I-130 filings for other emergency or exceptional circumstances of a non-routine nature. However, such filings must be truly urgent and otherwise limited to situations when filing with USCIS online or domestically with an expedite request would likely not be sufficient to address the time-sensitive and exigent nature of the situation.
What about large-scale disrupting events?
In an event such as a natural disaster or prolonged or severe civil strife, USCIS may delegate blanket authorization to the Department of State to accept and adjudicate clearly approvable Form I-130 immediate relative petitions from petitioners directly affected by such events. The petitioner need not prove “exceptional circumstances” where a blanket authorization has been granted. These temporary blanket authorizations do not require, but rather, allow consular offices to use their discretion to accept a Form I-130. Under this temporary blanket authorization, an officer may accept a Form I-130 filing by a petitioner who does not reside within post’s jurisdiction, bearing in mind that the intent of the authorization is to assist those directly affected by the disruptive event, not to speed up the process for those petitioners who are not directly affected.[13]
What are the procedures for asking that a U.S. Embassy or Consulate accept the filing of an I-130?
If a consular officer declines to accept a local filing, the officer should inform the petitioner of the decision and of the process for filing the Form I-130 at a USCIS lockbox or online. The petitioner does not have the right to appeal, motion, or otherwise request reconsideration of a USCIS or DOS decision to decline acceptance of a local filing.[14]
What is the adjudication process?
If a consular officer has accepted an I-130 for adjudication, the officer will need to review the petition to verify the relationship between the parties.
The officer will then send the petitioner’s biodata to the National Visa Center (NVC) to do the Adam Walsh check for certain crimes by the petitioner against minors.
Consular officers at posts abroad are authorized to adjudicate certain “clearly approvable” petitions.[1] A case is not clearly approvable if:
- Primary evidence submitted does not satisfy the officer that the petitioner is a U.S. citizen or that the relationship to the beneficiary claimed in the
- petition exists;
- Petitioner cannot present primary evidence relating to such matters; or
- USCIS has so instructed post because the Adam Walsh Act check raises questions which need further review.
If an I-130 is not clearly approvable, a consular officer must send the petition and supporting documents, along with a memorandum explaining why the petition is not clearly approvable, to the National Visa Center (NVC). The NVC will forward those materials to the designated USCIS office for adjudication.
A consular officer lacks power to deny the petition.
[1] USCIS, Policy Alert: Accepting Petition for Alien Relative (Form I-130) Abroad (Jan. 31, 2020). However, the USCIS field offices in Accra, Ghana; and London, England, will continue to accept and adjudicate Forms I-130 until April 1, 2020, if you reside in-country.
[2] USCIS, I-130, Petition for Alien Relative (Jan. 31, 2020).
[3] 6 USCIS-PM B.3(A).
[4] 9 FAM 504.2-4(A).
[5] 9 FAM 504.2-4(B).
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] USCIS, Policy Alert: Accepting Petition for Alien Relative (Form I-130) Abroad (Jan. 31, 2020).
[12] 9 FAM 504.2-4(B).
[13] 9 FAM 504.2-4(B); 6 USCIS-PM B.3(C).
[14] 6 USCIS-PM B.3(D).
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