The Permanent Resident Timeline Tightrope

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[authors: Kathleen Campbell Walker and Susan Waller Ramos[1]]

As an immigration attorney, when a client seeks your counsel to help a qualifying relative obtain lawful permanent resident (LPR) status in the United States (U.S.), many factors must be assessed in determining the applicant’s eligibility for LPR status and the best option to use.     While foreign nationals who are outside the U.S. will apply for an immigrant visa abroad, a process commonly referred to as consular processing, those who are already inside the U.S. may have the option of adjusting status to that of a LPR in the U.S. or applying for an immigrant visa abroad.  Of course, there may be situations in which the best counsel an immigration lawyer can provide may be not to apply. This article will address the timelines of consular processing and adjustment of status, in the family-based immigration context, as well as potential pitfalls that may affect the timelines. As the purpose of this article is to pinpoint the differences in processing times between these processes, it is written in the context of a foreign national relative who is immediately eligible to immigrate (i.e., an immediate relative)[2] and as to a relative who must use a preference category.  Any preference-based petition requires consultation of the Department of State’s (DOS) Visa Bulletin to determine the timing as to the availability of the immigrant visa to add to the creation of the timeline.[3]  

Reverse Engineering

In almost every immigration case, the issue of timing is critical.  One method to address client expectations as well as to assess timing for a case is to apply the concept of reverse engineering to the immigration process.  In order to determine the amount of time that may be needed to process a case, you must first decide whether the case will be processed by (DOS) at the appropriate consulate/embassy or at U.S. Citizenship and Immigration Services (USCIS) for adjustment of status.   It is always critical to remember that immediate relatives are exempt from several of the normal requirements to qualify for adjustment of status filings in the U.S.[4]

Unlike preference petition cases, an immediate relative beneficiary may qualify for adjustment of status even though the immediate relative:

  • Worked in the U.S. without authorization;
  • Is not in the U.S. in lawful status (e.g. overstay);
  • Failed to maintain lawful status continuously in the U.S. since entry;
  • Violated the terms of admission to the U.S. as a nonimmigrant.[5]

An immediate relative is still required to show that he or she was inspected, admitted, or paroled into the U.S. after inspection by an immigration officer.[6]  One exception to this requirement is if the immediate relative beneficiary may benefit from §245(i) of the Immigration and Nationality Act, as amended (INA).[7]

Visa Wait Times

As noted above, the Visa Bulletin published monthly by the DOS addresses the estimated wait times for immigrant visas in employment and family-based preference categories.   The Visa Bulletin is not applicable to immediate relatives, since there is no cap on the number of visas available to immediate relatives.[8]

For employment-based immigrant visa cases, the wait for an immigrant visa can be seventy years in some preference categories based on the nationality of the beneficiary.[9]   These long waits are based on the low 140,000 annual visa quota for employment-based immigrant visas and the per country limits applied in determining the allocation of immigrant visas.[10]   Similar lengthy waits apply to many of the preference categories for family-based immigration due to the annual 480,000 family-based visa limit from which the number of immediate relative visas is subtracted.[11]  No fewer than 226,000 family-based preference visas are available each year.[12] A U.S. citizen petitioning for an adult son or daughter from Mexico can expect to wait about 20 years, while U.S. citizens petitioning for a brother or sister from the Philippines have waited more than 23 years.[13]   Typically, a visa number is “available” for an individual with a priority date that is earlier than the cutoff date listed in the Visa Bulletin.  For family-based preference cases, the filing date of the I-130 alien relative petition is the priority date.[14] For employment-based preference cases, the priority date is either the date a labor certification was accepted for processing by the Department of Labor (DOL) or, if a labor certification was not required, the date the I-140 immigrant petition for alien worker is filed properly with USCIS.[15]  Below are the descriptions of the four family-based and five employment-based preferences as detailed in the monthly Visa Bulletin:

Family

First – Unmarried Sons and Daughters of Citizens: 23,400 a year.

Second – Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200 a year.

 A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per country limit;

 B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third – Married Sons and Daughters of Citizens: 23,400 a year.

Fourth – Brothers and Sisters of Adult Citizens: 65,000 a year.

Employment

First - (EB-1, priority workers); 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second - (EB-2, worker with advanced degrees or exceptional ability); 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third - Preference (EB-3, professionals, skilled workers and other workers); 28.6% of the worldwide employment-based preference level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers.”

Fourth - (EB-4, special workers, such as religious workers); 7.1% of the worldwide level; and

Fifth - (EB-5, employment creation or investor visas). 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area and 3,000 set aside for investors in regional centers by  §610 of Pub. L. No. 102-395.

Stuart Anderson, in his paper entitled, “Waiting and More Waiting: America’s Family and Employment-Based Immigration System,” which was published in October 2011 for the National Foundation of American Policy, argues for the removal of the per country limits under INA §202(e) applicable to foreign states or dependent areas when visa demand exceeds the preference category limits as to employment-based immigrant cases while liberalizing the restriction as to family-based immigrant cases.[16]   H.R. 3012, the Fairness for High-Skilled Immigrants Act, was introduced by Rep. Chaffetz (R-UT) to eliminate the employment-based per country cap by fiscal year 2015 and raise the family-sponsored per-country cap from 7% to 15%.    Senator Grassley (R- IA) placed a hold on the bill in November of 2011 and then released his hold on July 11, 2012 after he and Senator Schumer (D- NY) reached an agreement on certain additional H-1B enforcement provisions. [17]

For those immigration practitioners who recommend to clients the filing of any labor certification to address an employer’s need for an unskilled worker or who submit a petition for a brother or sister of a U.S. citizen, the explanation of how the allocation of visas works and the potential wait time for an immigrant visa is extremely critical in managing client expectations.  Consider the charts provided below from Mr. Anderson’s article as to projected current immigrant visa wait times.  Of course, any date reflected in the Visa Bulletin is subject to retrogression as well, and projected visa availability does not move with any assurance of consistency due to the uncertain nature of filings and eligibility for the immigrant visa.

The Critical Intake of Facts

In some cases, there will be no choice between processing in the U.S. for adjustment of status versus consular processing abroad.  Determining the available options and appropriate path though involves a long list of considerations.  Some of the basic issues for review are:

1.         Where is the applicant?

2.         How did the applicant enter the U.S.?

3.         Is the applicant in the U.S. pursuant to an authorized period of admission?

4.         Is the petitioner a U.S. citizen (USC)?

5.         Is the applicant a U.S. citizen and does not know it?

6.         Is the applicant already the beneficiary of an immigrant visa petition and/or labor certification?

7.         Has the applicant ever been a U.S. lawful permanent resident?  What happened in any prior application for permanent residence?

8.         Is the applicant subject to any grounds of removability or inadmissibility?

9.         What is the applicant’s country of chargeability for visa purposes?  Is cross-chargeability an option?

10.       Has the applicant ever violated the terms of his or her stay in the U.S.?

11.       Has the applicant ever been refused admission to the U.S.?

12.       Review all of the DS-230/DS-260 and I-485 questions with the applicant in advance.

13.       Does the applicant qualify for any waivers?

14.       Has the applicant renounced U.S. citizenship?

15.       Has the applicant paid required U.S. taxes, if applicable?

16.       Has the applicant registered for selective service, if applicable?

17.       Does the applicant have any criminal history?  Do you have the records related to any arrest and disposition, as well as the statutory information regarding the alleged crime?

18.       Triple check the issue of the application of unlawful presence bars under INA  §212(a)(9).

19.       Did the applicant ever have A, G, or E nonimmigrant status requiring the filing of an I-508 Waiver of Rights, Privileges and Immunities? [18]

20.       Is the applicant subject to the two year foreign residency requirement of INA §212(e)?

21.       Is the applicant eligible for a faster path via employment or family-based alternatives?

22.       If a marriage based case, is the marriage valid?

When There is a Choice

In the cases in which the applicant may either adjust to permanent residence in the U.S. or apply for an immigrant visa abroad, the choice will almost always be to file an adjustment application in the U.S. to allow the applicant to obtain work authorization and remain in the U.S.  The negatives related to consular processing for immigrant visas include: medical examination results are more unpredictable, administrative processing delays, lack of legal recourse upon denial, no legal counsel allowed at most consular interviews, communication difficulties with posts, delays in legal interpretations, waiver processing delays, and additional hurdles as to admission by U.S. Customs and Border Protection (CBP).

Family-Based Filings - Step One: the I-130

Once the decision is made to proceed with a family-based immigrant filing, the first step to be taken when a USC or LPR (petitioner) wishes to have a relative (beneficiary) immigrate to the U.S. is the filing of Form I-130, Petition for Alien Relative, with USCIS.[19]  In order to obtain LPR status, USCIS must approve this petition, meaning that USCIS is convinced that the qualifying relationship exists.

For beneficiaries who are either outside the U.S., or who are inside the U.S. but wish to consular process instead of applying for adjustment of status, and beneficiaries who must use a preference category and are not yet eligible to obtain LPR status, the I-130 is filed alone, which is often referred to as a “stand-alone Form I-130.”  On January 1, 2012, USCIS announced a change the way petitioners must file stand-alone Forms I-130 to include another lockbox location.[20]  Currently, stand-alone Forms I-130 filed by petitioners residing in the U.S. are filed with either the USCIS Lockbox in Chicago, Illinois or the USCIS Lockbox in Phoenix, Arizona, based on the residence of the petitioner.

I-130 petitioners living abroad were permitted in the past to file Form I-130 with a U.S. embassy or consulate, when there was no USCIS international office in the country where the petitioner resided.[21]  On May 17, 2011, USCIS published a final rule with a request for comments in the Federal Register regarding a change in the way petitioners who live abroad would file Forms I-130.[22] This announcement was followed by a USCIS Policy Memorandum explaining the changes that would take effect on August 15, 2011 in connection with Forms I-130 filed by petitioners living abroad.[23]  Petitioners living overseas in countries that do not have a local USCIS office must file stand-alone Forms I-130 with the USCIS Lockbox in Chicago except in exceptional circumstances; while petitioners living overseas in countries that have a USCIS office may choose to file the stand-alone Form I-130 with the USCIS Lockbox in Chicago or to file the stand-alone Form I-130 with the international USCIS office that has jurisdiction over the petitioner’s residence.  This information is confirmed in the current I-130 form instructions, found at www.uscis.gov, which were revised on January 8, 2012. Please see Exhibit 1 for a copy of Lockbox Filing Tips suggested by USCIS on its website, which of course can change with no prior notice.

According to the current Form I-130 instructions, USCIS may permit DOS to adjudicate Forms I-130 in exceptional circumstances only for a petitioner residing abroad in a location where there is no USCIS office.  While the current form instructions do not indicate what circumstances may be considered exceptional, USCIS has previously suggested that the following situations were deemed to be emergency situations: [24]

  1. A U.S. service member is notified of a transfer or deployment with little notice;
  2. The petitioner or beneficiary has an urgent need to travel for a medical emergency;
  3. The petitioner or beneficiary is facing an imminent threat to his or her safety;
  4. A beneficiary is within a few months of losing eligibility due to age;
  5. The petitioner and family have traveled for the immigrant visa interview, but the petitioner has naturalized and a stand-alone petition is now required to be filed on behalf of the family member(s); and
  6. The petitioner adopted a child and must leave the country immediately.

Regardless of where the stand-alone I-130 is filed, it must be accompanied by the correct filing fee, currently $420.00, and the required initial evidence to support the petition.  Once the USCIS Lockbox receives the Form I-130, it is forwarded to a USCIS Service Center, based on the address of the petitioner.  The Service Center that receives the petition from the Lockbox will send the petitioner a receipt notice that provides the name and address of the Service Center that is processing the petition, as well as a receipt number that begins with three letters that relate to the Service Center that is processing the petition.

Step 2: Adjustment of Status in the U.S. Versus Application for Immigrant Visa Abroad

Filing Form I-130 is the first step in the immediate relative LPR application process, as the approval of this petition is the basis for an applicant to become an LPR.  In order to obtain LPR status, a beneficiary must either file an application for adjustment of status or an application for an immigrant visa.  This article will review the differences between these two processes and the chart at Exhibit 2 demonstrates some of these differences.

Adjustment of Status-Procedures and Issues

If the beneficiary is in the U.S. and is eligible to adjust status to that of a LPR (meaning a visa number is available and the person is otherwise eligible), Form I-130 may be filed simultaneously with Form I-485, Application to Register Permanent Residence or Adjust Status. Of course, the timing of the I-485 is based on the availability of an immigrant visa as described above by reviewing the current Visa Bulletin. (See Exhibit 3) In that case, counsel must review the instructions for Form I-485 on the USCIS website in order to determine the filing location.  Currently, Forms I-130 and I-485 filed together will be filed with the Chicago Lockbox, but at a slightly different address.  That address is:

For postal service:

USCIS

P.O. Box 805887

Chicago, IL 60680-4120

 

For Express Mail and courier:

USCIS

Attn: FBAS

131 South Dearborn – 3rd Floor

Chicago, IL 60603-5517

This procedure was implemented in 2010 as a part of USCIS efforts to become more efficient by streamlining form and fee intake at the Lockbox instead of at Service Centers.[25]  As the USCIS instructions often change filing locations, it is very important to review the form instructions and updates posted on AILA infonet as well as agency press releases each time an attorney is preparing to file an immigration-related application or petition.

Form I-485 has a separate filing fee, currently $985.00.  In addition, most applicants must submit a fee for biometrics processing, currently $85.00 for a total filing and biometrics processing fee of $1,070.00.  Form I-485 also has its own set of instructions and required documentation.  It is important to provide all documentation required to prove eligibility for adjustment of status as proscribed in INA §§245(a) and (c), or proof of eligibility under INA§245(i).

There are many benefits to adjusting status in the U.S.  One benefit, as noted above, is that the applicant for adjustment of status, who is the beneficiary of the I-130, is permitted to remain in the U.S. while the application is pending.  The applicant may apply for work authorization simultaneously with the I-485 or at a later date, by filing Form I-765, Application for Employment Authorization.  The current filing fee for Form I-765 is $380.00, but those who filed Form I-485 on or after July 30, 2007, and paid the Form I-485 filing fee at that time, are not required to pay the I-765 filing fee.  If not filed simultaneously with Form I-485, Form I-765 should be filed according to the Form I-765 instructions on the USCIS website.  Form I-765 must be filed with a copy of the receipt notice for Form I-485 as proof that USCIS has accepted the previously filed Form I-485.  If Form I-765 is filed concurrently with Form I-485, it is filed where Form I-485 is required to be filed.

Many applicants for adjustment of status will want or need to travel outside the U.S. while their applications for adjustment of status are pending.  It is very important to note that, but for certain exceptions, an adjustment of status applicant who travels outside the U.S. while her application for adjustment of status is pending is deemed to have abandoned her application for adjustment of status, and the application will be terminated.[26]  Unless an applicant meets the exceptions, she will be required to apply for, and be granted, advance parole by USCIS prior to her departure from the U.S.  This process is accomplished by filing Form I-131, Application for Travel Document, with USCIS.  The current filing fee for Form I-131 is $360.00, but those who filed Form I-485 on or after July 30, 2007, and paid the Form I-485 filing fee at that time, are not required to pay the I-131 filing fee.  Form I-131 may also be filed after the application for adjustment of status has been accepted by USCIS, in which case the I-485 receipt notice must be included with the filing as proof of its acceptance by USCIS.  Please see the Form I-131 instructions on the USCIS website for details regarding its requirements.

It is also important to note that although USCIS may grant advance parole based on a pending adjustment of status application, the issuance of advance parole by USCIS does not cure grounds of inadmissibility.  Until recently, if an adjustment of status applicant had accrued 180 days/one year of unlawful presence in the U.S. prior to filing the application for adjustment of status, her departure from the U.S. on advance parole was considered a departure under INA §212(a)(9)(B), triggering the applicable bar and rendering her inadmissible.[27]  Applicants who had accrued unlawful presence under §212(a)(9)(B) were required to remain in the U.S. until being granted LPR status or risk being subject to the applicable bar.  On April 17, 2012, the Board of Immigration Appeals (BIA) held, however, that when an applicant for adjustment of status departs the U.S. temporarily after he or she is issued advance parole, that departure is not considered a “departure from the U.S.” within the meaning of INA §212(a)(9)(B)(i)(II).[28] This finding by the BIA is ground-breaking, as now adjustment of status applicants whose only ground of inadmissibility is a 3/10 year bar may depart the U.S. with advance parole and not risk a finding of inadmissibility upon his or her return under INA §212(a)(9)(B)(i)(II).[29].

It is important to note that the BIA published an amended order in In re Arrabally on August 16, 2012, after DHS moved to amend the order to add a footnote.[30]  The amended order clarifies that a grant of admission to the U.S. pursuant to advance parole after a trip abroad is never guaranteed.  Further, it stressed that DHS has the discretionary authority to determine whether parole is warranted, pursuant to INA §212(d)(5), and that the issuance of advance parole prior to taking a trip abroad merely conveys a “practical expectation” that, if circumstances have not changed, it is likely that DHS will exercise its discretion in favor of the applicant when he or she applies for admission upon his or her return to the U.S. pursuant to advance parole.[31]

Formerly, an approved application for employment authorization resulted in the issuance of an Employment Authorization Document (EAD), also called Form I-766, and an approved application for advance parole resulted in the issuance of an Advance Parole, also called Form I-512.  On December 21, 2010, USCIS issued a policy memorandum regarding the issuance of a combination advance parole employment authorization document.[32]  On February 11, 2011, USCIS announced that it was beginning to issue the combination EAD/AP, and that the card would look similar to the formerly issued EAD, but would include the language “Serves as I-512 Advance Parole.”  This announcement may be viewed on the USCIS website:  http://tinyurl.com/3kpnqh8.  Therefore, now applicants whose concurrently filed I-765 and I-131 are approved will receive the combination EAD/AP card.

Practice Pointer:  An applicant who knows that he or she will need to travel and work while his or her application for adjustment of status is pending should file Forms I-765 and I-131 concurrently with Form I-485, as the National Benefits Center (NBC) of USCIS may take approximately three months to adjudicate these applications. Please see the USCIS website at https://egov.uscis.gov/cris/processTimesDisplayInit.do and click on “NBC Processing Dates”

for the current NBC processing time for these applications.

Adjustment of Status - Timeline

If the I-130 petition is filed concurrently with Form I-485, or the I-130 petition indicates that the beneficiary is in the U.S. and will apply to adjust status, the file is forwarded from the Lockbox to the NBC, then to the appropriate field office with jurisdiction over the petitioner’s residence.  The applicant will generally receive a receipt notice for all applications filed within two weeks of USCIS’ receipt of the applications.  Approximately two weeks after the applicant receives the receipt notices, the applicant will receive a notice that a biometrics appointment has been scheduled for the applicant so that his or her biometrics may be captured to facilitate a Federal Bureau of Investigation (FBI) background check.  Once biometric processing is complete, USCIS will schedule an interview in connection with the I-130 and I-485 so that a District Adjudications Officer (DAO) can verify the validity of the relationship between petitioner and beneficiary and ask them questions under oath regarding eligibility.

For concurrently filed cases, in order to determine how long it will take USCIS to process the I-130 and I-485, counsel must view the field office’s processing time for Form I-485, which can be accomplished by reviewing the USCIS website, www.uscis.gov, for the field office where the application is being processed.  On the left side of the USCIS homepage, there is a hyperlink to “Processing Times” under “Find.”  Once you click the hyperlink, you will scroll to the bottom of the page.  There is a drop down menu to access the processing times for the different Service Centers, as well as the NBC and all USCIS field offices.  Choose the appropriate field office and click “Field Office Processing Dates” to the right.  There you will be able to view the most recently posted processing time report for Form I-485 at that field office.  This posting will provide an indication as to how long it will take the field office to schedule an interview in connection with that application.  In addition, AILA liaison reports also can provide additional guidance in addition to AILA Message Center postings.

USCIS’ processing time for an adjustment of status application often varies drastically according to the field office where the application for adjustment of status is pending.  At this time, the most recent processing times on the USCIS website are dated July 31, 2012 and were posted on September 12, 2012.  Many USCIS field offices, including El Paso, Boston, Detroit, Charleston, and Dallas, show a four month processing time for Form I-485.[33]  Other offices are taking longer to process these applications.  For example, the Chicago field office is processing applications received on or before March 21, 2012, and the Los Angeles field office is processing applications received on or before March 12, 2012.  Therefore, an important factor to consider in comparing the timelines for adjustment of status and consular processing is the location of the field office that is processing the application for adjustment of status.

If the I-130 and I-485 are approved on the day of the interview with USCIS, the beneficiary/applicant will be considered a LPR (or conditional LPR, if based on a marriage petition and the couple has not yet been married two years at the time of the approval) as of that date and her I-551 card (aka “green card”) will reflect that date as the date of the grant of LPR (or conditional LPR) status.  Therefore, depending on the field office processing time, if the I-130 and I-485 are filed correctly and the interview goes well, a beneficiary/applicant may obtain LPR status within four to five months of the date of the initial filing. 

Application for Immigrant Visa Abroad – Procedure and Timeline

In order to advise a client regarding the consular processing timeline, it is important to determine at the outset how long USCIS will take to process the petition.  The current processing time for the I-130 petition may be estimated by reviewing the USCIS website at www.uscis.gov.  Choose the appropriate Service Center and click “Service Center Processing Dates” to the right.  There you will be able to view the processing time for Form I-130 at that Service Center based on the category of filing.  You will note that the processing times posted are for the previous month, so they may not be exactly accurate, but serve as a way to estimate the processing time.  USCIS’ most recent processing times were posted on September 13, 2012, but reflect processing times as of July 31, 2012.

Once the I-130 processing time is estimated, the next step in assessing the consular processing timeline is to determine the relevant timelines for the rest of the process.  Once the petition is approved at the USCIS Service Center, it is forwarded to the National Visa Center (NVC), which acts as a filter for the DOS.  DOS suggests that an applicant wait at least three weeks after receiving the approval notice from USCIS before contacting NVC to request the status of the case processing.[34]

Once the NVC receives the approved petition, it assigns a case number to the beneficiary, now called the “applicant,” and provides petitioners, sponsors, and visa applicants instructions regarding the completion of applications and the payment of fees.  The NVC also reviews affidavits of support, receives fees, and reviews documents sent by petitioners and applicants to ensure that they have complied with the immigrant visa instructions.[35]  Processing through the NVC can increase the processing time by several months, as it involves requesting completed forms, documents, and fees, and reviewing the applicant’s submission of those items.  Therefore, in assessing the timeframe involved in applying for an immigrant visa abroad, counsel must consider the amount of time it will take the NVC to receive the approved I-130, provide instructions in connection with the payment of fees and the submission of an affidavit of support and supporting documentation, and the review of those documents.

The NVC schedules the immigrant visa interviews for most embassies and consulates, but not for all.  For those posts that are scheduled by the NVC, once the file is complete and the applicant has informed the NVC that he or she has gathered all required documents, the NVC holds the file until an immigrant visa interview may be scheduled with the appropriate embassy or consulate.  Once scheduled, the NVC forwards the file to that embassy or consulate.   The DOS outline of immigrant visa processing  is posted at:  http://travel.state.gov/visa/immigrants/info/info_3744.html.

Practice Pointer: It is important to note that immigrant visa application instructions will vary based on which embassy or consulate will process the immigrant visa application.  Therefore, an immigration attorney should always review the website of the embassy or consulate where the consular appointment will be held, as well as the DOS website, to ensure that instructions are followed.  For example, DOS has rolled out Form DS-260, Online Immigrant Visa Application and Registration, which will eventually replace Form DS-230, Application for Immigrant Visa.  Form DS-260, however, is only being used by select embassies and consulates for certain applicants. Therefore, it is advisable to review the DOS website at http://www.travel.state.gov/visa/immigrants/info/info_5164.html to determine which applicants should be required to complete Form DS-260 versus Form DS-230.   At present, the use of the DS-260 is limited to the following U.S. Embassies and Consulates:

  • Visa Applicants who will be interviewed at:
    • Any U.S. Embassy/Consulate in Mexico; or
  • The NVC requested fees and/or documents in October 2010 or later; and
  • Visa applicants will be interviewed at any U.S. Embassy/Consulate listed below:
    • Afghanistan - Kabul
    • Canada - Montreal
    • Greece - Athens
    • Iraq - Baghdad
    • Jordan - Amman
    • Peru - Lima
    • Syria - Damascus

Additional Time for Waiver Adjudication

It is critical to determine at the outset whether a beneficiary is subject to a ground of inadmissibility and, if so, whether she is eligible for a waiver of that ground of inadmissibility via the filing of Form I-601, Waiver of Grounds of Inadmissibility.  The adjudication of Form I-601 may add many months to the immigrant visa application and adjustment of status timelines.  If an immigrant visa or adjustment of status applicant is determined by DOS or USCIS to be inadmissible, but is eligible for a waiver.  Form I-601 must be filed and approved before an immigrant visa may be issued or before an application for adjustment of status may be approved.

Formerly, if the beneficiary was outside the U.S., Form I-601 was typically filed by submitting the Form I-601 to a U.S. embassy or consulate, which would then forward the Form I-601 to the international USCIS office with jurisdiction.  Direct Filing of Form I-601 was started as a pilot program in January of 2011.  In April of 2011, the program was implemented in 28 locations that have both a USCIS and a DOS presence.  On June 4, 2012, USCIS implemented a drastic change to the way that Forms I-601 are filed and adjudicated for applicants outside the U.S.  Effective June 4, 2012, Form I-601 must be filed at a USCIS Lockbox instead of with an international USCIS office abroad, and is adjudicated by the Nebraska Service Center (NSC), unless certain exceptions are met.[36]  The exceptions to this new policy are the following:

  • Applicants residing in Cuba may continue to file Form I-601 with the USCIS office in Havana; and
  • USCIS international field offices may receive and adjudicate a Form I-601 by an applicant residing in that country, if the USCIS Field Office Director (FOD) determines that the case presents “exceptional and compelling circumstances” that indicate that an immediate adjudication is required and that even expedited processing by the NSC would not address the urgency of the situation.[37]  According to the USCIS Policy Memorandum, examples of these circumstances would include: medical emergencies faced by the applicant or qualifying relative; threats to the personal safety of the applicant or qualifying relative; beneficiary close to losing eligibility due to age; and a petitioner having adopted a child and needing to depart the country immediately.

For the first six months of this new filing procedure (until December 3, 2012), applicants residing in Mexico have the choice of filing with the USCIS Lockbox or with the USCIS field office in Ciudad Juarez.[38]  For applicants in Mexico who choose to file the I-601 with the USCIS Field Office in Ciudad Juarez (until required to file at the USCIS Lockbox after December 3, 2012), there is generally a two month wait after being found inadmissible before the applicant may obtain an appointment to submit the Form I-601 to USCIS, which is located at the post.  During the I-601 appointment with USCIS at the post in Ciudad Juarez, Forms I-601 that appear readily approvable, currently about fifty percent, are adjudicated up front.  Otherwise, these cases are referred to other offices for adjudication, including the Nebraska Service Center, Mexico City, Monterrey, the International Operations Support Branch in Anaheim, California, and the Vermont Service Center.  Once Forms I-601 are transferred to one of these locations for adjudication, the current adjudication time for Form I-601 can be from eight to ten months, according the consulate’s website. Please see the consulate’s website at http://ciudadjuarez.usconsulate.gov/hcis601.html for more information regarding the processing of Form I-601.

USCIS has a three month processing goal for the adjudication of Forms I-601 filed with the USCIS Lockbox.  Further, only Forms I-601 filed with the USCIS Lockbox, which are transferred to the NSC for adjudication, are entered in the Computer-Linked Application Information Management System (CLAIMS), so a CLAIMS tracking number will be provided for these cases, enabling the applicant to track the I-601 processing.

If the beneficiary is in the U.S. and has applied for adjustment of status, there are several ways in which Form I-601 may be filed.  If you know that the adjustment of status applicant is inadmissible, but that he or she is eligible for a waiver, you may file Form I-601 with Form I-485, Application to Register or Adjust Status.  In that case, Form I-601 and Form I-485 (and Form I-130, if filed concurrently) are filed according to the filing instructions for Form I-485.

If the beneficiary is in the U.S., but has already filed Form I-485, he or she will file Form I-601 based on the form instructions on the USCIS website.  At this time, Forms I-601 filed after the I-485 has been filed are sent to one of three lockboxes, depending on the first three letters in the receipt number listed on the receipt notice for Form I-485.[39]  Receipt numbers for Form I-485 that begin with “MSC” and those I-485 receipt numbers that do not have a three letter code at the beginning are filed with the USCIS Chicago Lockbox.  Adjustment of status applicants whose I-485 receipt numbers begin with “EAC” or “SRC” file Form I-601 at the Dallas Lockbox.  Adjustment of status applicants whose I-485 receipt numbers begin with “LIN” or “WAC” file Form I-601 at the Phoenix Lockbox.  The addresses for these USCIS lockboxes may be found on the Form I-601 instructions on the USCIS website, located at the following link: http://tinyurl.com/3ouxwbn.

On January 9, 2012, USCIS announced a proposal to amend its regulations concerning the process by which certain immediate relatives of U.S. citizens, who are physically present in the U.S., may apply for waivers of inadmissibility based on the accrual of unlawful presence pursuant to INA §212(a)(9)(B)(i).[40]  Called a “provisional waiver,” this waiver (form I-601A) would be filed and adjudicated while the applicant is in the U.S., after the approval of the I-130, and before departing the U.S. to attend the consular appointment in connection with the application for an immigrant visa.  Once the provisional waiver is approved, the waiver beneficiary would then be required to attend the consular appointment abroad.  At that appointment, a consular officer would determine whether the applicant is otherwise admissible.  If so, the immigrant visa would be issued.[41]  If not, the approval of the provisional waiver would be revoked.

It is important to note the restrictions of this yet-to-be implemented provisional waiver.  First, the waiver will only be available to immediate relatives of U.S. citizens, and not to relatives of LPRs.  Second, the provisional waiver will only waive inadmissibility based on INA §212(a)(9)(B)(i), not any other ground of inadmissibility.  Applicants who have other grounds of inadmissibility will not be eligible for this application process.

While the provisional waiver application is not yet in effect, if implemented, it will be a huge benefit to those who qualify, as they will no longer have to stay outside the U.S., separated from their loved ones, while USCIS adjudicates the I-601.  USCIS has indicated that it plans to publish a final rule related to the provisional waiver by the end of this calendar year.[42] At present the posted USCIS form processing times now includes (prospectively) processing times for the I-601A – four months at the moment.[43]  Please refer to Exhibit 4 for the information posted by USCIS about this prospective program.

Unfortunately, our clients are not always completely truthful about criminal history, prior findings of inadmissibility at a port of entry, or prior unlawful presence.  More often, however, the client does not remember an incident or does not think that it is important enough to lead to immigration consequences.  Most people do not know what conduct triggers specific grounds of inadmissibility or deportability.  If an immigration attorney does not know that a client will be found inadmissible and, therefore, does not file Form I-601 ahead of time, the USCIS DAO who determines that the applicant is inadmissible should provide the attorney with a letter explaining the applicable ground(s) of inadmissibility and instructions regarding the filing of Form I-601, if the ground of inadmissibility is eligible for a waiver.  Once filed, if the I-601 is denied by USCIS, the applicant may appeal the denial by filing a Notice of Appeal or Motion on Form I-290B.  Counsel must review the current form instructions on the USCIS website to determine the current filing address.  Once filed with USCIS, the appeal is forwarded to the Administrative Appeals Office (AAO).

This appeals process is the same for denials of I-601 applications filed by applicants for immigrant visas outside the U.S., as Forms I-601 are now adjudicated by USCIS.  Unfortunately, the current AAO processing time for Form I-601 is nineteen months, adding an extraordinary amount of time to the LPR application process.[44]  Therefore, it is extremely important to know up front what an applicant’s history is related to criminal activity, attempts to enter the U.S., overstaying in the U.S., and whether any grounds of inadmissibility apply.

For applicants inside the U.S., an immigration attorney must also know if any grounds of deportability apply.  This detailed initial intake is the only way to assess whether a waiver may be available under the applicable ground; whether the applicant qualifies for any such waiver; whether an applicant for adjustment of status will end up in removal proceedings, and if so, whether the applicant will have relief available; and the amount of time that will be required to gather the documentation and information necessary to have a strong likelihood of waiver approval.  Obviously, it is recommended to file a strong waiver application up front, and not to have to supplement the waiver application in response to a Request for Evidence.  Currently, the appeals process takes over a year and a half.

Adjustment of Status Versus Application for Immigration Visa – Options if Denied

One factor to consider in deciding whether to apply for an immigrant visa or for adjustment of status in the U.S. is the availability of options in the event of denial of the application or the agency’s failure to act.  An applicant for adjustment of status whose application is denied has administrative remedies available, such as filing a motion to reconsider using Form I-290B within 30 calendar days after service of the decision.[45]  If the applicant is placed in removal proceedings, he or she has a right to present his or her case to an immigration judge.  If the agency is not acting on the application, the applicant may file a mandamus action in federal court.

In contrast, these options are not available to an applicant for an immigrant visa whose application is denied at a consular post.  While questions of law may be reviewed by seeking an advisory opinion from DOS, questions of fact are generally not reviewable.  A consular officer must inform the applicant of the statutory or regulatory basis for the refusal and of the statutory or regulatory availability of administrative relief.[46]  If the ground of ineligibility may be overcome by the submission of additional evidence and the applicant expresses an intention to do so, all documents provided by the applicant may remain in the consular file for a period of up to one year, if the applicant consents.  If the ground of refusal is not overcome within that year, any documents that do not relate to the refusal should be returned to the applicant.[47]

If the ground of ineligibility cannot be overcome by the submission of additional evidence, the principal consular officer of the post must “review the case without delay, record the review decision, and sign and date the prescribed form.”[48]  If the ground of ineligibility may be overcome by the submission on additional evidence and the applicant expresses an intention to do so, a review of the denial may be postponed.  If the principal consular officer does not agree with the denial, that officer may either request an advisory opinion from DOS or assume responsibility for final action on the case.[49] More often, however, the principal officer who disagrees with the subordinate officer’s denial will inform the subordinate officer of the reason the application should be approved and will convince him that the application should be approved.

If the principal consular officer agrees with the denial of the visa application, the notice of refusal should be sent to the attorney of record.  An applicant whose application for an immigrant visa is denied based on a ground of inadmissibility for which there is no waiver has no remedy as to the issuance of an immigrant visa.  Similarly, an applicant whose application for an immigrant visa is denied based on a waivable ground of inadmissibility, but who is not eligible for the waiver (i.e. no qualifying relative or no hardship to a qualifying relative), has no remedy.

Conclusion                                                                                     

In conclusion, adjustment of status is usually a faster and less complicated way to obtain LPR status for those who are eligible to do so.  The USCIS field offices are scheduling interviews in four months in most cases, while the USCIS Service Centers are taking at least five months just to adjudicate Form I-130, which is only the first step for those who will apply for an immigrant visa abroad.  As a legal counselor, one of the primary tasks in this decision process is being clear at the beginning as to the anticipated timeline and possible outcome.

 


[1] Kathleen Campbell Walker is a former national president (2007 – 08) and general counsel (2009 -10) of the American Immigration Lawyers Association (AILA).  She is chair of the Immigration Practice Group of Cox Smith Matthews Incorporated (Cox Smith) and has been practicing immigration law since 1985.   She served as chair of the 2011-12 AILA National Verification and Documentation Liaison Committee.  She is board certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.  She has been ranked in Band One by Chambers USA for several years and is rated as AV preeminent by Martindale-Hubbell in the area of immigration law.  She has testified multiple times on immigration and border security issues before Congress and the Texas legislature.  Susan Waller Ramos is a senior counsel in the Immigration Practice Group of Cox Smith.  She served as Vice Chair of the AILA Carolinas Chapter from 2008-09 and is admitted to the bars of Texas, New Mexico, and North Carolina.  She currently serves on the AILA National Customs and Border Protection (CBP) Liaison Committee and on the Board of the Federal Bar Association, El Paso Chapter. 

[2] Immigration and Nationality Act, as amended (INA) §201(b)(2)(A)(i).

[3] The current and archived versions of the Visa Bulletin are available at the State Department’s website http://travel.state.gov/visa/bulletin/bulletin_1360.html and they are also posted on www.aila.org.

[4] See 8 CFR §245.1.

[5] See 8 CFR §245.1(b).

[6] See 8 CFR §245.1(b)(3).

[7] Under INA §245(i) the beneficiary must be the beneficiary of a petition for classification under INA §204 filed on or before April 30, 2001 or an application for a labor certification under INA §212(a)(5)(A) that was filed on or before April 30, 2001.  If the petition or labor certification was filed after January 14, 1998, the beneficiary must be present in the U.S. on the date of the enactment of the LIFE Act Amendments of 2000 (December 21, 2000). 8 CFR §245.10(a)(ii).  In 1994, Congress passed special adjustment of status provisions, commonly referred to as “§245(i).” Department of Commerce, Justice, and State Appropriations Act, Pub. L. No. 103-317, §506(b), 108 Stat. 1724 (1994).  The new INA  §245(i) provided broad relief for persons who were otherwise ineligible for adjustment, thus allowing them to become LPRs without having to go the route of the immigrant visa process abroad, which would for many applicants trigger a 3 or 10 year box to admission.  In exchange for this benefit, they were required to pay a surcharge fee.  As originally enacted, §245(i) allowed most persons who had a basis for becoming LPRs, and who were otherwise admissible to become LPRs, to adjust upon payment of a fee of $1,000.  This “grandfathering” provision also applied to children who “aged-out” (i.e., turned 21) while the application was pending.  Although the program ended in January 1998, persons who had qualified under §245(i) as of that date were grandfathered.  On December 15, 2000, Congress extended the grandfathering date to April 30, 2001.  8 CFR §245.10(a)(3); Memo, Yates, Assoc. Dir. Operations, USCIS, HQOROPD 70/23.1 (Mar. 9, 2005), published on AILA InfoNet at Doc. No. 05031468.  Note the physical presence requirement in the U.S. applies only if the principal’s labor certification or INA §204 petition was filed after January 14, 1998 and on or before April 30, 2001.  See Pub. L. No. 105-119, title I, §111; 111 Stat. 2440, 2458–59 (Nov. 26, 1997).  The Legal Immigration Family Equity Act Amendments of 2000, Title XV of Public Law 106-554, section 1502 (114 Stat. at 2764) (enacted Dec. 21, 2000) (the LIFE Act Amendments) extended the §245(i) (8 U.S.C. 1255(i)) sunset date from January 14, 1998 to April 30, 2001. That Act also requires that, if the qualifying visa petition or labor certification application was filed after January 14, 1998, the alien must have been physically present in U.S. on the date of enactment (December 21, 2000) to be eligible to apply for adjustment of status under §245(i).

[8] INA §201(b).

[9] See Stuart Anderson, Waiting and More Waiting:  America’s  Family and Employment-Based Immigration System, National Foundation for American Policy (Oct. 2011).  A highly skilled Indian national who is sponsored today for an employment based 3rd preference immigrant visa could wait 70 years to receive an immigrant visa, because of a backlog of 210,000 or more Indian nationals waiting for visas in the third preference category. http://www.nfap.com/pdf/WAITING_NFAP_Policy_Brief_October_2011.pdf.

[10] See DOS Visa Bulletin, supra n. 3.

[11] INA §201(c) (1) (A).

[12] INA §201(c) (1) (B).

[13] See Id. and the Visa Bulletin, October 2012.

[14] 8 CFR §204.1(c).

[15] 8 CFR §204.5(d)

[16] INA §202(a)(2) provides that the per country caps apply so that immigrant visas issued under INA §203 to any one foreign state in a single fiscal year do not exceed 7%.

[17] See AILA Infonet Doc. Nos. 12071861 and 12062243 regarding H.R. 3012 developments.

[18] See 8 CFR §247.1.   Thank you to Judith Cooper, Esq. of Houston for this one!!

[19] In a fiance case, the I-129F is used.

[20] “USCIS Announces Changes to Stand-Alone I-130 Filing Locations”, published on AILA InfoNet at Doc. No. 11122749 (posted Jan. 3, 2012).

[21] 8 CFR §204.1(e).

[22] 76 Fed. Reg. 28303 (May 17, 2011), “DHS Final Rule on Revised Filing Instructions for Petitioners Abroad,” published on AILA InfoNet at Doc. No. 11051762 (posted May 17, 2011).  See AILA Liaison Practice Pointer: I-130s, I-601s & Overseas Biometrics (October 17, 2012) published on AILA Infonet Doc. No. 12101590 (posted October 15, 2012).

[23] USCIS Policy Memorandum, PM-602-0043 (August 8, 2011), published on AILA InfoNet at Doc. No. 11081020 (posted Aug. 10, 2011).

[24] “USCIS Centralizes Filing of Form I-130” (published May 16, 2011; revised Aug. 10, 2011), available at http://tinyurl.com/3zsy9te.

[25] “Revised Form I-485, Application to Register Permanent Residence or Adjust Status, and Revised Filing Instructions” (Feb. 25, 2010), published on AILA InfoNet at Doc No.  10022660 (posted Feb. 26, 2010).

[26] 8 CFR §245.2(a)(4)(ii).

[27] USCIS Adjudicator’s Field Manual at 40.9.2(a)(5) Note, and (a)(6).

[28] Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012)

[29] Id.

[30] Id.

[31] Id.

[32] USCIS Policy Memorandum, PM 602-00223 (Dec. 21, 2010).

[33] Processing time reports as of July 31, 2012, posted on the USCIS website on September 13, 2012 www.uscis.gov .

[34] Immigrant Visas Processing-FAQs, available at http://www.travel.state.gov/visa/immigrants/info/info_3180.html.

[35] “DOS Liaison Report from the AILA Tour of the National Visa Center,” published on AILA InfoNet at Doc. No. 06101860 (posted Oct. 18, 2006).

[36] USCIS Policy Memorandum, PM-602-0062 (May 31, 2012).

[37] Id.

[38] Id.

[39] Direct Filing Addresses for Form I-601, Application for Waiver of Grounds of Inadmissibility, posted on June 4, 2012, available at www.uscis.gov.

[40] 77 Fed. Reg. 19902 (April 2, 2012), “USCIS Proposed Rule on I-601 Stateside Waivers,” published on AILA InfoNet at Doc. No. 12033061 (posted April 2, 2012).

[41] “Provisional Unlawful Presence Waivers: Questions and Answers,” published on AILA InfoNet at Doc. No. 12033043 (posted March 30, 2012).

[42] “I-601 Notice of Intent Teleconference,” published on AILA InfoNet at Doc. No. 12013068 (posted Jan. 30, 2012).

[44] “AAO Processing Times as of September 1, 2012,” published on AILA InfoNet at Doc. No. 12091853 (posted Sept. 18, 2012).

[45] See 8 CFR §§103.3 and 103.5(a).

[46] 22 CFR §42.81(b).

[47] Id.

[48] 22 CFR §42.81(c).

[49] Id.

 

Published In: Immigration Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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