Tag Archives: immigrant visa

Approval of Form I-212 + Grant of Immigrant Visa= A True Success Story

A U.S. citizen and his permanent resident sister consulted me about their mother’s immigrant visa case, after the U.S. Consulate found her inadmissible under INA 212(a)(9)(C)(i)(I), i.e. illegal reentry following accrual of more than one year of unlawful presence in the United States.  With my counsel, their mother (my client) filed a Form I-212, Application for Permission to Reapply for Admission Into the United States, which the USCIS Field Office in Salt Lake City, Utah approved on February 17, 2017.

The I-212 approval led the U.S. Consulate to schedule the mother for a follow-up interview and issue the immigrant visa. This was her second immigrant visa application based on an approved I-130 immigrant petition her U.S. citizen son filed for her.

Ten years ago, the U.S. Consulate denied her first immigrant visa application upon finding her inadmissible under INA 212(a)(9)(B)(i)(II), i.e. accrual of unlawful presence of one year or more in the United States prior to departing the country. Because she had no qualifying relative (U.S. citizen or permanent resident spouse or parent) to be eligible for the Form I-601 [INA § 212 (a)(9)(B)(v)] unlawful presence waiver, she had to wait 10 years for that bar to expire. After waiting a decade to file her second immigrant visa application, she was shocked to hear she was still permanently barred under INA 212(a)(9)(C)(i)(I).

The mother’s description of her re-entry into the United States — following accrual of unlawful presence of more than one year — indicated she was “waved through” at a U.S. border checkpoint, even though she lacked proper travel documents. In general, this means the person entered the United States as a passenger in a car after an immigration officer waved the car through the port of entry.

I counseled the family on two different paths the mother could take to obtain the immigrant visa: (a) file a motion to reconsider with the U.S. Consulate, requesting it find that the wave through counted as a lawful admission and was not an illegal entry to trigger the permanent bar under INA 212(a)(9)(C)(i)(I); OR (b) file a Form I-212 application to be excused from the permanent bar.

Because the mother lacked objective evidence of a wave through, the family chose to file a Form I-212 application with USCIS instead of a motion to reconsider with the U.S. Consulate.

The applicant must be outside the U.S. for 10 years before she may file a Form I-212 to be excused from a section 212(a)(9)(C)(i)((I) bar. Luckily, my client had already completed the 10 years while she was waiting for the unlawful presence bar to run. After several discussions with the family, I determined there were sufficient favorable factors to get an I-212 approval.

I worked extensively with the family to prepare their written testimonies and gather supporting documentary evidence to prove their mother regretted her past immigration violations, has good moral character, and did not pose a threat to the American community. I also counseled them on how to establish that her denial of admission would cause unusual hardships to her as well as to her family in the United States. In addition, I prepared a legal memorandum outlining the facts and procedural history, citing to the evidence, and discussing why the mother deserved the waiver based on case precedents, statutory law, and existing policies.

While the Form I-212 application remained pending, I sent a follow-up letter to the USCIS Field Office,  requesting approval and including additional evidence of the hardships the U.S. citizen son, in particular, was suffering due to his mother’s absence from the United States.

After several months had passed, the sister called to ask me whether there were any additional steps to take to get the USCIS Field Office to issue a decision.  I began to explain the various ways  (including seeking Congressional assistance) until she stopped me mid-sentence and started screaming with joy. She had just received a message from her brother stating he received the I-212 approval notice!

The mother’s follow-up interview with the U.S. Consulate occurred in April 2017, and shortly after she was issued the immigrant visa. After 13 long years of separation, she may now finally reunite with her family in the United States.

The brother and sister live in different U.S. states,  and their mother lives in a South American country. Although we communicated by telephone and email and never met in person during the course of representation, we developed a strong, trust-based relationship, which contributed to a favorable outcome. This is a true success story for Dyan Williams Law PLLC and for my client and her family.

Preparing approvable Form I-212 applications are among our main areas of expertise. Clients benefit from the advice we give in filing Form I-212 requests to lawfully re-enter the United States following a removal order or other immigration violation.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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What Triggers a Notice of Intent to Revoke an I-130 or I-129F Petition and What Can You Do About It?

popped balloonWhen USCIS finds that it approved an I-130 (immigrant visa) or I-129F (K-1 visa) petition in error, it will issue a Notice of Intent to Revoke (NOIR) to the petitioner. A NOIR is a letter to the petitioner fully explaining why USCIS intends to revoke a previously approved petition. Typically, the petitioner has 30 days to respond to the allegations and present additional information or evidence before USCIS decides whether to revoke or reaffirm the petition approval.

What Factors Usually Trigger a Notice of Intent to Revoke? 

In marriage-based green card cases, the two most common factors that trigger a revocation notice are:

USCIS Discovers Prior Marriage Fraud Determination

A common reason for a NOIR is when USCIS overlooked a prior marriage fraud determination that prevents the approval of a subsequent petition for the same beneficiary.

Section 204(c) of the Immigration & Nationality Act states that no visa petition may be approved if the beneficiary was previously accorded, or sought to be accorded, an immediate relative or preference status as the spouse of a U.S. citizen or permanent resident, by reason of a marriage determined by USCIS to have been entered into for evading immigration laws (i.e. a sham marriage for immigration benefits).

It is not enough for the Consulate to have denied a prior immigrant visa or K-1 visa based on suspicion of a sham relationship. Rather, for section 204(c) to apply, USCIS must make an independent conclusion that the prior marriage was fraudulent.

If USCIS later discovers it should have denied the petition under section 204(c), due to an official determination of prior marriage fraud, it may issue a NOIR.

U.S Consulate Finds Lack of Evidence Showing Bona Fide Marriage

Although the U.S. Consulate has no authority to revoke a petition, it has the final say in whether to grant you an immigrant visa or K-1 visa to enter the United States. The doctrine of consular nonreviewability severely limits judicial or administrative review of a consular officer’s visa denial.

Furthermore, a consular officer who has doubts about the bona fide nature of the relationship between the petitioner and visa applicant, or observes material discrepancies in the record, may return the petition to USCIS for possible revocation.

At the immigrant visa or K-1 visa interview, the consular officer may question the visa applicant and conduct its own investigation. It may also require additional documentary evidence of the relationship, even though USCIS has already approved the petition.

If you do not communicate well, submit insufficient documents, or provide answers that cause the Consulate to doubt the bona fide nature of your relationship to the petitioner, this could lead to a NOIR citing lack of evidence to keep the petition approval. If you raise issues that conflict with the existing record, this could lead to a NOIR citing fraud or willful misrepresentation to gain immigration benefits.

Because the Consulate has no authority to re-adjudicate the petition, it must support the return of the petition with factual and concrete reasons that USCIS did not fully consider.

The Consulate should seek revocation only if the consular officer knows, or has reason to believe, that the petition approval was obtained through fraud, misrepresentation or other unlawful means, or that the visa applicant is not entitled to the benefits sought in the petition.  Generally, Consulates are instructed to not return the petition unless it discovers new information or evidence not known to USCIS at the time of approval.

What Can You Do to Avoid or Overcome a Notice of Intent to Revoke? 

In marriage-based green card cases, the documentary evidence and testimony you present is essential to getting and keeping a petition approval. You cannot obtain an immigrant visa, a K-1 visa, or adjustment to permanent resident status without an underlying petition approval.

Avoiding a Notice of Intent to Revoke starts with filing a strong petition with USCIS and preparing thoroughly for the visa interview at the U.S. Consulate. Overcoming a Notice of Intent to Revoke lies in submitting a timely and convincing response to USCIS.

The key stages to exercise caution and seek sound advice from an experienced immigration attorney are:

Filing the Petition

USCIS approves an I-130 for a spouse and an I-129F for a fiancé(e) only when it is convinced the couple more likely than not shares a bona fide relationship, i.e. a marriage or engagement based on mutual intent to establish a life together, and not just for immigration benefits.

In support of the petition, the couple may present documentary evidence such as email correspondences, telephone records, stamped passport pages, travel itineraries, hotel receipts, photos of the two of them together, and affidavits from relatives and friends demonstrating they have a bona fide relationship.

When reviewing a stand-alone I-130 or I-129F petition, USCIS does not interview the petitioner or beneficiary, or conduct independent investigation, but generally relies on the documentary evidence submitted with the petition.

USCIS will issue a Request for Evidence (RFE) if initial evidence is missing. USCIS will issue a Notice of Intent to Deny (NOID) if initial evidence is mostly present, but: (a) the filing does not appear to establish eligibility by the preponderance of the evidence; (b) the case appears to be ineligible for approval but not necessarily incurable; or (c) the adjudicator intends to rely for denial on evidence not submitted by the petitioner.

Even when USCIS approves the petition, it may later issue a Notice of Intent to Revoke at any time before the immigrant visa or adjustment of status is granted. If the petition did not contain much evidence of a bona fide relationship or eligibility for the benefit sought, it’s a lot easier for USCIS to revoke the petition approval.

Obtaining guidance from an attorney on the appropriate forms and supporting evidence to submit is essential to getting a petition approval and avoiding a NOIR.

Attending the Visa Interview

In many cases, revocation proceedings are initiated by consular officers who suspect the couple do not share a real relationship. Consular officers often rely on their opinions about the nature of a genuine relationship, in light of cultural norms, local customs, and other factors.  In turn, USCIS may depend on the findings of a consular officer who has interviewed the visa applicant, verified documentary evidence, and performed investigation abroad.

Do not take the petition approval for granted or treat the visa interview as just a formality. The doctrine of consular nonreviewability severely limits administrative or judicial review of consular decisions. The visa applicant (beneficiary of the petition) must prepare fully for the visa interview, respond consistently, truthfully and appropriately to questions, and provide any requested or missing documents.

Having counsel prepare you for the visa interview, including questions and concerns that are likely to be raised by the consular officer, is critical.

Responding to a NOIR

Even couples who share a bona fide relationship can end up with a Notice of Intent to Revoke. If USCIS issues a NOIR, it means it found good and sufficient cause to revoke the petition approval. When responding to a NOIR, it’s important to rebut each and every issue raised, including allegations against the bona fide nature of the relationship.

USCIS must provide derogatory information unknown to the petitioner or applicant in the NOIR. The petitioner typically has 30 days to respond to the allegations and present additional information or evidence before USCIS makes a decision.

Due to the time constraints, multiple issues raised in the NOIR, and the petitioner’s lack of experience with complicated immigration matters, it’s important to get counsel’s help. An experienced attorney can advise you on the rebuttal documents and information to submit, prepare a persuasive legal brief, and submit the best possible response within 30 days.

Challenging a Revocation Notice

If USCIS agrees to sustain the petition approval – following review of the response to the NOIR –  it will issue a reaffirmation notice to the petitioner. After receiving the reaffirmation notice, the Consulate may accept the petition as valid, schedule a second interview, and issue the immigrant visa or K-1 visa.

If, however, USCIS decides the petition should not have been approved, it will issue a revocation notice to the petitioner. The petitioner may appeal an I-130 or I-129F revocation to the higher agency, or file a motion to reopen or reconsider with USCIS, within 15 days. If the petitioner does not challenge the revocation, the decision becomes final and the petition may no longer be used to continue the immigration process.

When the couple is already married, the petitioner may file a new I-130 petition, but must include evidence to rebut any claims that led to the NOIR or revocation notice in a prior petition. When the couple is engaged, filing a new K-1 fiancé(e) petition is not a cure-all solution because USCIS and the Consulate will be aware of problems in the prior petition. Getting married and filing an I-130 petition is a more effective, but not foolproof, course of action.

A petitioner who files a new I-130 or I-129F petition still has to overcome issues listed in a Notice of Intent to Revoke a prior petition approval, or address concerns raised by the U.S. Consulate.

If you receive a revocation notice, consult an immigration attorney to determine whether to file an appeal, a motion to reopen or reconsider, and/or a new petition, and help you pursue your options.

To learn more about the revocation process, read our other article, Notice of Intent to Revoke I-130 or I-129F Petition: Big Stumbling Block to Overcome in Marriage-Based Green Card Case.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Notice of Intent to Revoke I-130 or I-129F Petition: Big Stumbling Block to Overcome in Marriage-Based Green Card Case

big wall

In marriage-based green card cases, USCIS’ approval of an I-130 petition does not entitle you to an immigrant visa or adjustment to permanent residence. Likewise, mere approval of an I-129F petition does not necessarily mean you will get the K-1 fiancé(e) visa. Until you are admitted to the U.S. as an immigrant or you adjust status, USCIS may revoke the approval of the petition at any time, for good and sufficient cause.

Some petitions may be automatically revoked, such as when the petitioner withdraws the petition, divorces the beneficiary, or dies and section 204(l) survivor benefits do not apply. Other petitions may be revoked on notice when USCIS determines it issued the approval in error. A Notice of Intent to Revoke (NOIR) is a big stumbling block to overcome when seeking to immigrate to the United States.

Why is the Notice of Intent to Revoke a Big Stumbling Block?  

An approved I-130 petition by a U.S. citizen or permanent resident spouse allows you to apply for an immigrant visa at the U.S. Consulate or file for adjustment of status within the U.S. (if eligible). An approved I-129F petition permits you to apply for a K-1 visa to come to the U.S., marry the U.S. citizen petitioner within 90 days of arrival, and then file for a green card. Getting the petition approved is just a preliminary step.

USCIS may seek to reverse its decision and revoke the approval based on information or evidence that it did not previously consider. The information or evidence need not have been unavailable or undiscoverable at the time the petition was approved. A NOIR may be based on plain USCIS error, such as overlooking a prior marriage fraud determination or lacking information or evidence discovered by the U.S. Consulate.

Receiving a Notice of Intent to Revoke is disheartening, especially when you have already completed the visa application process and attended your visa interview. Even if the NOIR is based on misinterpretations of the facts, false allegations, or erroneous conclusions, a full and timely response is still required to keep the approval of the petition and continue with the green card process.

How Does the Revocation Process Work?

Once you are permanent resident, revocation of the petition approval is no longer possible. Instead, the U.S. government must use rescission or removal (deportation) proceedings to take your green card away.

The revocation process may begin at any time after the petition is approved, but before you adjust to permanent residence or before you are admitted to the U.S. on an immigrant visa.

When USCIS, on its own initiative,  determines it approved an I-130 or I-129F in error, it retrieves the petition from the USCIS office, consular office, or National Visa Center (NVC) for possible revocation.

In other cases, the U.S. Consulate initiates revocation by sending the case back to USCIS for further review, due to negative information it obtained during review of the visa application or during its interview of the visa applicant.  The consular officer typically denies the visa application under INA section 221(g) (temporary refusal of immigrant visa), pending USCIS’ review of the returned petition. The Consulate returns the petition to USCIS with a  memorandum explaining why it believes the petition should not have been approved or is no longer approvable.

Consulates return immigrant petitions to the National Visa Center, which then route them to the appropriate USCIS offices.

Case Status Information

When a petition is returned and relocated to USCIS, the status of the petition is logged into the national USCIS database system, which in turn updates the Case Status Online system on USCIS’ website.

Not all the USCIS service centers issue receipt notices to petitioners, informing them that the petition is now at a particular USCIS office. For many months (sometimes six months to over 12 months), petitioners often cannot obtain specific case status information through the National Customer Service Center (NCSC) or Case Status Online, until USCIS issues a decision reaffirming the approval or a Notice of Intent to Revoke.

Notice Reaffirming Approval or Notice of Intent to Revoke

Upon receipt of the returned petition, USCIS prepares the case for additional review and forwards it to the adjudications officer who will evaluate the reasons provided by the Consulate for the return.

If USCIS finds the petition is not revocable for the reasons stated by the Consulate, it will reaffirm the petition and return it to the Consulate with an explanation of its decision not to revoke the petition.

If USCIS agrees with the Consulate’s reasoning, it will issue a Notice of Intent to Revoke to the petitioner. A NOIR must be based on “good and sufficient cause.” This means there is evidence in the record, if unexplained and unrebutted, would support a denial of the petition.

A NOIR is a letter to the petitioner fully explaining why USCIS intends to revoke a previously approved petition. USCIS must provide derogatory information unknown to the petitioner or applicant in the NOIR. The petitioner has an opportunity to rebut the allegations and present additional information or evidence before USCIS makes a decision.

USCIS gives the petitioner a specific time frame (usually 30 days) to respond. Petitioners may request additional time if they need it for legitimate reasons, like obtaining documentation from abroad.

If the petitioner does not provide a full and timely explanation on why the petition should not be revoked, and support it with additional evidence, USCIS will revoke the petition. When the approval of a petition is revoked, you may no longer use it to immigrate to the United States.

K-1 visa petitions are especially problematic because they expire after four months from the date of approval by USCIS (or date of last action by U.S. Consulate).  An expired petition may be revalidated by USCIS or the U.S. Consulate in four-month increments upon finding that the K-1 beneficiary is free to marry and intends to marry the petitioner within 90 days of arrival in the United States. The decision on whether to revalidate the petition is discretionary.

What are the Steps for USCIS to Decide on a Notice of Intent to Revoke? 

USCIS will review the petitioner’s response to a NOIR before it decides whether to revoke the petition.

Reaffirmation Notice

If USCIS agrees to sustain the petition approval – following review of the response to the NOIR – it will issue a reaffirmation notice to the petitioner. It will also return the petition to the National Visa Center for transfer to the Consulate with the reaffirmation notice, a copy of the NOIR, and the petitioner’s response.

The Consulate may accept the petition as valid, schedule a second interview, and issue the immigrant visa or K-1 visa. In rare cases, however, the Consulate may return the petition again to USCIS with new evidence that was not previously considered. In that event, the revocation process begins again.

Revocation Notice

If the petitioner does not provide a satisfactory response or fails to timely respond to the NOIR, USCIS will issue a revocation notice to the petitioner.

The petitioner may appeal an I-130 or I-129F revocation to the higher agency, or file a motion to reopen or reconsider with USCIS, within 15 days. If the petitioner does not challenge the revocation, the decision becomes final and the petition may no longer be used to continue the immigration process.

Consult an Experienced Immigration Attorney from Start to Finish

An experienced immigration attorney can help you get an I-130 or I-129F approval by advising you on the appropriate forms and supporting documents to submit. Before you attend the visa interview, it’s best to have the attorney prepare you for likely questions and requests for documents, as well as potential actions by a consular officer.

If a NOIR is issued, you typically need counsel’s guidance in filing a timely, complete and satisfactory response to obtain a reaffirmation notice. If USCIS revokes the petition approval, consult an immigration attorney to determine whether to file an appeal, a motion to reopen or reconsider, and/or a new petition, and help you pursue your options.

To learn more about the revocation process, read our other article, What Triggers a Notice of Intent to Revoke an I-130 or I-129F Petition and What Can You Do About It?

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Immigrant Visa Process: Delays and Setbacks

delaysIf you seek permanent residence through an immigrant petition filed by a family member or employer and you are outside the U.S. (or are in the U.S. but cannot file for adjustment of status), you must obtain your immigrant visa at the U.S. Consulate.

Known as “consular processing,” this pathway to a green card often involves delays and setbacks at all stages of the application process.

#1: WAITING FOR PETITION APPROVAL

Family-Based Immigration

In family-based immigration, only relatives who fall in specific family-based categories qualify for an immigrant visa. The first step is for a U.S. citizen or permanent resident relative to file a Form I-130 petition for you to immigrate to the U.S.

Employment-Based Immigration

In employment-based immigration, only persons who fall in designated employment-based categories qualify for an immigrant visa. A U.S. employer usually has to file a Form I-140, Immigrant Petition for Alien Worker, for you to immigrate to the U.S.  In the employment-based fourth preference(EB-4) immigrant category, the U.S. employer must file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

In some cases, the I-140 petition may be filed by the foreign national beneficiary, such as in EB-1 Extraordinary Ability and EB-2 National Interest Waiver petitions.

In the employment-based fifth preference (EB-5) immigrant category, the Form I-526, Immigrant Petition by Alien Entrepreneur, is filed by the foreign national immigrant investor.

Delays and Setbacks

Long Processing Time

Due to case volume and other factors, USCIS’ processing times for immigrant petitions vary greatly (e.g. 4 to 12 months). If there is a backlog in your visa category, USCIS may also put the petition on the backburner.

During processing, USCIS may issue a Request for Evidence (RFE) when there is insufficient information or documents to approve the petition. In some cases, USCIS may issue a Notice of Intent to Deny Petition (NOID) when it finds the beneficiary is not eligible for the benefit sought. USCIS will not approve the petition unless an adequate and timely response is submitted.

The date USCIS receives the petition, not the date USCIS approves the petition, affects when an immigrant visa becomes available in the preference categories. Nevertheless, the petition must first be approved before you may apply for an immigrant visa.

Challenges with Proving Eligibility in Family-Based Immigration

Documentary evidence

In family-based immigration, petitioners must show they have the required relationship with the beneficiary, besides presenting documentary proof of their U.S. citizenship or permanent residence.

Proving a parent-child relationship can be a problem when there is no birth certificate or when the birth certificate was registered late.

Proving a legal, bona fide marriage in spousal petitions carries challenges. The petitioner must present the requisite marriage certificate and divorce decrees (for any prior marriages), showing the marriage was legal in the place where it occurred.

Furthermore, the petitioner must provide documentary evidence establishing the marriage was entered into in good faith, for the purpose of creating a life together as spouses, and not for immigration purposes. When the petitioner lives in the U.S. while the beneficiary lives overseas, there is limited documents to present. For example, there is no joint lease, joint bills, joint tax returns or other documents that married couples who live together would normally have.

Adam Walsh Act

The Adam Walsh Child Protection and Safety Act, which was signed into law in 2006,  prohibits U.S. citizens and permanent residents who were convicted of a “specified offense” against a minor from petitioning for family members, particularly a spouse or a child. USCIS may not approve these I-130 petitions unless it finds the petitioner poses “no risk” to the family member.

Significant delays, notices of intent to deny, and decisions denying the immigrant petition often results when the Adam Walsh Act applies.

Challenges with Proving Eligibility in Employment-Based Immigration

Documentary evidence

In employment-based immigration, the petition must contain extensive, reliable documentary evidence of the beneficiary’s qualifications, including the requisite degree, academic records, and support letters from current and past employers. Those who are filing for EB-1 and EB-2 (Exceptional Ability and National Interest Waiver) classification must also provide specific evidence showing they meet the criteria.

Immigrant petitions that require job offers must also include evidence that the U.S. employer has the ability to pay the proffered wage. Examples are copies of annual reports, federal tax returns, or audited financial statements.

Labor Certification in EB-2 and EB-3 categories

Immigration petitions involving professionals with Advanced Degrees or Exceptional Abilities (EB-2, excluding NIWs) and professionals with a bachelor’s degree, skilled workers, and unskilled workers (EB-3) must be accompanied by a PERM Labor Certification issued by the Department of Labor.

Prior to filing the I-140 petition, the U.S. employer must complete a process to recruit U.S. workers and then file for the labor certification. The DOL must certify to the USCIS there are insufficient U.S. workers able, willing, qualified and available to accept the job in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Forwarding of Case from USCIS to NVC

Upon completing review of the immigrant petition, USCIS issues a decision. If the petition is denied, the notice will include the reasons for denying the petition and explain any rights to appeal the decision. If the petition is approved and you are applying for an immigrant visa abroad, USCIS will forward the approved petition to the U.S. Department of State’s National Visa Center (NVC).

#2: WAITING FOR INSTRUCTIONS FROM NATIONAL VISA CENTER (NVC)

Even with an approved immigrant petition, you may not start applying for an immigrant visa until one is available or is about to become available. The only category in which immigrant visas are always available is the immediate relatives (family-based) category. Immediate relatives include:

  • The spouse of a U.S. citizen
  • Minor child (under age 21) of a U.S. citizen
  • Parent of an adult U.S. citizen (age 21 or older)
  • Step-parent of an adult U.S. citizen (if the step-parent, step-child relationship began before the citizen’s 18th birthday)
  • Step-child of a U.S. citizen (if the step-parent, step-child relationship began before the step-child’s 18th birthday)
  • The spouse of a deceased U.S. citizen (if the spouse was married to the deceased U.S. citizen for at least two years and the application for permanent residence was filed within two years of the death of the U.S. citizen)

Those in the family-sponsored preference and employment-based categories must wait for their priority date to become current.

The NVC is responsible for processing immigrant visa applications before they are forwarded to the U.S. Consulate. It will send instructions to the petitioner and/or beneficiary when an immigrant visa is about to become available.

Delays and Setbacks

Backlog in the Preference Categories

The priority date marks the applicant’s place in the visa queue. In family-sponsored, preference categories, the priority date is the date USCIS received the Form I-130, Petition for Alien Relative, or in certain cases, the Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.

In employment-based categories, the priority date is the date the Department of Labor (DOL) received the application for alien labor certification or the date USCIS received the I-140 petition (if no alien labor certification is required). In certain cases, it’s the date USCIS received the Form I-360 petition (EB-4, fourth preference category) or the Form I-526, Immigrant Petition by Alien Entrepreneur (EB-5, fifth preference category).

In October 2015, the Department of State made changes to the monthly Visa Bulletin so there are now two different dates to track: the Application Final Action Dates (AFAD) and the Dates for Filing Applications (DFA).

AFADs are the cut-off dates that determine when an immigrant visa becomes available. If your priority date is earlier than the cut-off date in the AFAD chart, or the AFAD is “current” (“C”) for the preference category and country of chargeabilty, you may receive an immigrant visa following completion of the application process.

DFAs are the cut-off dates that determine when the applicant should receive instructions from the NVC to submit documents for consular processing. When your priority date is earlier than the cut-off date in the DFA chart, you may submit required documents to the NVC, following receipt of instructions to do so.

When demand exceeds supply of visas for a given year in a given category or country, a visa backlog forms. It usually takes several years for a visa to become available.  In the F4 (brother or sister of adult U.S. citizen) category, for example, the wait for a visa to become available is usually 10+ years.

Challenges with Submitting Required Forms and Documents

At the appropriate time, the NVC will send instructions to the visa applicant to pay the appropriate fees: Form DS-260, online immigrant visa application fee, and Form I-864, Affidavit of Support fee (in all family-based immigration cases and in certain employment-based immigration cases).

After the fees are paid, the NVC will request the visa applicant to submit the required documents, including DS-260 application form and civil documents (e.g. birth certificate, police certificate, and photocopy of valid passport biographic data page) .

Visa applicants must also submit a Form I-864 and supporting financial documents proving they will not become a public charge to the U.S. government (in all family-based immigration cases, and in certain employment-based immigration cases where a U.S. citizen or permanent resident relative filed the Form I-140 petition or where such a relative has a significant ownership interest in the entity that filed the petition).

The NVC will issue a Request for Evidence if the visa applicant fails to submit all the required documents, such as his birth certificate, police certificate, and Form I-864 with supporting financial evidence.

Forwarding of Case from NVC to U.S. Consulate

The NVC will forward the immigrant visa  file to the U.S. Consulate only when it is satisfied that all required forms and documents have been submitted. The NVC may termination registration (close case) when applicants have not responded to its instructions within one year.

#3. WAITING FOR IMMIGRANT VISA INTERVIEW

After your case becomes qualified for an interview, NVC will work with the appropriate U.S. Consulate to schedule an appointment for you.

Visa interviews are normally scheduled one month in advance.  The U.S. Consulates inform the NVC of the dates they are holding interviews, and NVC fills these appointments on a first-in, first-out basis. Most interviews are scheduled within 60 days of NVC’s receipt of all required documents.

Delays and Setbacks

Completing Medical Examination

An immigrant visa cannot be issued if you do not complete the medical examination, along with required vaccinations, by an authorized panel physician in your country.

Prior to the interview, you should schedule and complete the required medical examination. Completing the medical examination after the visa interview will delay your case until the U.S. Consulate receives the results.

Completing the medical examination too soon (well before the interview) can cause delays as well. The medical report is valid for one year from the date of the medical examination. The examination must be redone if the report has expired or will expire before you enter the United States.

Failing to Appear at Visa Interview or Requesting Rescheduling

Although you usually have a month’s notice, you have no control over when the visa interview is scheduled. Failure to appear could lead to significant delays or a termination of your visa application. Requests for interview rescheduling will delay processing by several months.

#4: WAITING FOR IMMIGRANT VISA GRANT

At the visa interview, you will be expected to submit original documents or certified copies, such as your birth certificate and marriage certificate (if applicable). The consular officer will verify the authenticity of the documents and question you about your eligibility for the visa.

The U.S. Consulates have tremendous power in deciding whether to grant an immigrant visa. The doctrine of consular non-reviewability prohibits judicial review of visa denials. There is no formal appeal process to challenge a visa denial.

Delays and Setbacks

Administrative Processing

Section 221(g) of the Immigration & Nationality Act (INA) allows the U.S. Consulate to conduct further administrative processing before it issues the visa or determines whether you are eligible for the visa.

Administrative processing involves a wide range of activities. Examples are request for a Security Advisory Opinion (SAO) from the Department of State on whether the applicant poses a risk to the United States; more in-depth investigation to check for fraud; and request for review by a supervisor at the U.S. Consulate.

There is generally nothing you can do to speed up administrative processing and you are not told why it is necessary. While the delay is frustrating, cases that are otherwise approvable are rarely sent for administrative processing.

Incomplete Application

Under section 221(g) of the INA, a consular officer may refuse to grant the visa due to missing information on the application forms or missing documents. For example, when the visa application is based on a spousal petition, the U.S. Consulate may request additional documentary evidence of the bona fide nature of the marriage. In some cases, it may return the petition to USCIS for revocation if it determines the petition should not have been approved.

Inadmissibility Finding

Section 212(a) of the INA lists various grounds under which a visa applicant is inadmissible to the U.S. (i.e. barred from entering the U.S.) The most common include fraud or willful misrepresentation of material facts to gain immigration benefits; crime-related problems; unlawful presence in the U.S. lasting more than 180 days; public charge issues; and illegal re-entries into the U.S.

Waivers of inadmissibility are available for some grounds and not for others. When a waiver is available, the visa applicant must also meet the requirements to apply for it.

If the U.S. Consulate finds you are inadmissible to the U.S., it will not grant the immigrant visa unless you (a) successfully challenge the finding by filing a motion to reconsider with the Consulate or (b) obtain a waiver of inadmissibility by filing a Form I-601 and/or Form I-212 with the appropriate agency.

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If all goes well, the U.S. Consulate will stamp an immigrant visa in your passport, which is normally valid for six months. It will also give you a sealed Visa Packet containing documents you must present to U.S. Customs and Border Protection at a port-of-entry (e.g. airport) upon your arrival in the United States. Do not open the sealed packet.

The CBP will verify whether  you are admissible to the U.S. before it admits you to the U.S. as a permanent resident. The CBP’s endorsement of the visa serves as temporary evidence of your immigrant status. You will be mailed your green card after you pay the USCIS Immigrant Fee.

Applying for an immigrant visa often involves delays and setbacks in all stages of the process. Work with an experienced immigration attorney to maximize your chances of obtaining an approval in the fastest time possible.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Form I-864: Alternatives to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination

The Form I-864, Affidavit of Support, is key to meeting the financial requirement for permanent residence and avoiding a public charge determination in most family-based and some employment-based immigrant visa or adjustment cases. Failure to meet the I-864 requirements may cause the U.S. Consulate or USCIS to determine you will likely become a “public charge,” i.e. become primarily dependent on the U.S. government for subsistence. This ground of inadmissibility bars you from receiving an immigrant visa or green card.

The petitioner who filed the immigrant petition on your behalf must also be your sponsor who files a Form I-864 to support your immigrant visa or adjustment application. When the petitioner does not earn enough income to sponsor you, there are alternatives to meeting the financial requirement.

What income requirement must the sponsor meet? 

To qualify as a sponsor, most petitioners must show their current annual household income is at least 125% of the federal poverty level for their household size.

Sponsors who are on active duty in the U.S. Armed Forces, including the Army, Marines, Navy, Air Force, or Coast Guard, and are sponsoring a spouse or minor child, only need to earn an income of 100% of the federal poverty level for their household size. (This exception does not apply to joint or substitute sponsors).

The federal poverty level, per household size, is set once a year and is shown in the Form I-864, Poverty Guidelines.

The household size includes:

  • the sponsor
  • the sponsor’s spouse (even if they are separated or live separately)
  • the sponsor’s unmarried children under 21 (regardless of where they live)
  • any person listed as a dependent on the sponsor’s last tax return
  • the intending (sponsored) immigrant
  • any derivative beneficiaries (i.e. those without a separate I-130 petition being filed on their behalf) who are accompanying the principal beneficiary (i.e. immigrating at the same time or within six months of the principal immigrant)
  • any immigrants previously sponsored with Form I-864 (or Form I-864 EZ), Affidavit of Support.

What are the alternatives if the sponsor does not earn enough income? 

There are situations in which the petitioner does not earn enough income to sponsor the immigrant. Examples include retired U.S. citizen parents,  U.S. citizen spouses who are still attending school and do not work full time, and petitioners with large household sizes.

When the petitioner does not qualify financially as a sponsor, there are other ways to meet the financial requirement for permanent residence and avoid a public charge determination.

1. The Sponsor May Get a Joint Sponsor to File a Separate Form I-864

A joint sponsor may submit a separate Form I-864, Affidavit of Support, when the sponsor does not earn sufficient income. A joint sponsor does not have to be related to the sponsor or the intending immigrant. But like the sponsor, the joint sponsor must:

  • Be a U.S. citizen or national or a permanent resident.
  • Be at least 18 years old.
  • Be domiciled (live) in the United States or a territory or possession.  (If they live abroad, they may show their residence abroad is temporary and they still have a domicile in the U.S. or will establish a domicile in the U.S. on or before the date of the principal intending immigrant’s admission or adjustment of status).
  • Meet all of the financial requirements.

Joint sponsors must meet the income threshold for their household size, independently. They cannot combine their income with the sponsor’s or another joint sponsor’s income to satisfy the requirement.

Intending immigrants are allowed only one joint sponsor. In family-based preference category cases including a principal beneficiary and at least one accompanying derivative beneficiary, the sponsor may use up to two joint sponsors.

2. The Sponsor May Use the Intending Immigrant’s Income to Overcome the Income Shortage (in Limited Cases)

The sponsor may include the income from the intending immigrant, if that income will continue from the same source after immigration. The intending immigrant must also currently reside with the sponsor, unless he or she is sponsor’s spouse.

The sponsored immigrant whose income is being used to meet the income requirement does not need to submit a Form I-864A, Contract Between Sponsor and Household Member, unless a spouse and/or children is immigrating with the sponsored immigrant. In this instance, the I-864A relates to support for the spouse and/or children.

3. The Sponsor May Include Income from Certain Relatives or Dependents

Sponsors may include income from U.S. citizen or permanent resident relatives (spouse, adult child, parent, or sibling) living in their household, or U.S. citizen or permanent resident dependents claimed in their most recent federal income tax return (regardless of where they live). The relative or dependent must also earn income that meets the federal poverty level for their household size.

The relative or dependent must submit a Form I-864A, Contract Between Sponsor and Household Member, agreeing to be jointly responsible for the sponsored immigrant. They must also be at least 18 years old when they sign the I-864A.

4. The Sponsor May Supplement Income With Assets

To supplement income, the sponsor may use the value of assets that can be converted into cash within one year and without considerable hardship or financial loss to the owner. Examples are money in a bank account, stocks or bonds, the net value of a second automobile, and the net value of a home or other real estate.

The assets used must be owned by (1) the sponsor, (2) the sponsor’s U.S. citizen or permanent resident relative (spouse, adult child, parent, or sibling) who resides with the sponsor and submits a Form I-864A , Contract Between Sponsor and Household Member, or (3) the intending immigrant (regardless of where he or she lives).

The value of the assets must be at least five times the difference between the sponsor’s total household income and the current federal poverty guideline for his or her household size. The exception is when a U.S.  citizen is sponsoring a spouse or minor child.  In that case, the assets must total at least three times the difference.

The sponsor must include evidence of the value of the assets used, such as a bank account record showing the  money has been on deposit for the last 12 months, and real estate appraisals with evidence of the sum of all loans secured by a mortgage, trust deed, or any other lien on the property.

USCIS or the NVC May Issue a Request for Evidence on the I-864 Requirement

U.S. Citizenship & Immigration Services (USCIS), which adjudicates I-485, adjustment to permanent residence applications, may issue a Request for Evidence when it determines the I-864 is deficient. Currently, the National Benefits Center (NBC) — usually through contract employees – do the initial screening of the I-864 based on a checklist.

The National Visa Center (NVC), which processes immigrant visa applications before they are forwarded to the U.S. Consulate abroad, may also issue RFEs concerning the I-864.

When an RFE is issued, USCIS and the NVC stops processing the case. Interim benefits, such as employment authorization and advance parole for I-485 applicants, are also delayed until an RFE response is submitted.

If the NBC determines  the response is inadequate, it will not forward the case to the USCIS Field Office for adjudication and will deny the I-485 due to failure to provide an adequate response. Similarly, the NVC may refuse to forward the immigrant visa case to the U.S. Consulate if it determines the RFE response is insufficient.

At the adjustment interview, USCIS may ask for current evidence that the financial requirement is met. The U.S. Consulate may also ask for additional financial evidence at the immigrant visa interview.  Nevertheless, the proper submission of required forms and documents and timely, full responses to RFEs permit the case to move forward.

Can an RFE Be Issued in Error? 

RFEs are issued for a variety of legitimate reasons, such as lack of evidence of the sponsor’s current income, missing federal tax return and W2s for the most recent tax year, and mistakes in filling out the I-864. But some RFEs are issued in error, such as when USCIS or the NVC overlooks evidence that the income requirement is met.

An RFE can be issued in error when the sponsor’s Current Individual Annual Income  meets the income requirement, but the total income for the most recent tax year is less than the federal poverty level for the household size. Such RFEs ask for evidence of assets or a separate I-864 from a joint sponsor to overcome the perceived income shortage.

The regulations and USCIS policy, however, state that the sponsor’s current annual income – not income on the federal tax return for the most recent tax year – is what really counts. Current income refers to the total earnings the sponsor expects to earn from the start to the end of the calendar year.  Income includes both taxable and nontaxable income, such as certain federal or state benefits (e.g. social security retirement or disability), as well as unemployment or workers compensation.

The sponsor should submit evidence of current income (e.g. pay statements for the last six months and current letter of employment), even though this is not required initial evidence.

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For more information, read our related article, Form I-864: Key to Meeting the Financial Requirements for Permanent Residence and Avoiding a Public Charge Determination.

Consult an immigration attorney to help you meet the financial requirements for permanent residence and avoid a public charge determination. The best time to speak with an attorney is before you file for the immigrant visa or for adjustment, not after you receive an RFE.

A good attorney can evaluate whether the sponsor meets the income requirements and, if he or she does not, recommend alternatives to make up for the shortfall.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: TaxCredits.net