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Updates on Family-Based Immigration from the VSC and NVC

Updates on Family-Based Immigration from the VSC and NVC

By Jennie Guilfoyle

On July 9-10, 2013, CLINIC conducted a training on family-based immigration in Manchester NH. Representatives from the Vermont Service Center, the National Visa Center, and the Manchester USCIS field office attended the training and answered questions. The training was followed on July 11 by a tour of the NVC, at which NVC staff answered further questions. This article summarizes the highlights of remarks by staff from the VSC and the NVC.

Vermont Service Center

Background on the VSC

The VSC has approximately 1,500 employees, of which 1,000 are federal government employees, and 500 work for a contractor.  The VSC has two facilities, in St. Albans and Essex, Vermont. In the family-based immigration section, there are 200 adjudications officers, 21 supervisors, and 4 section chiefs. Adjudicators receive basic immigration law training when they begin work at the VSC, and then start by working on one specific form type. After a few months, they are moved to another form type. New adjudicators are paired with mentors, and supervisors review all their work at first. Supervisors review some portion of every adjudicator’s work each month.

General Case Processing

The VSC adjudicates Forms I-129F, I-130, and I-751. Forms I-129F and I-130 are sent to the lockbox, which fees them in, issues receipt notices, and then forwards them to the VSC. Forms I-751 are sent directly to the VSC. When any of these forms arrive at the VSC, they are put on the shelf in receipt date order, and that is the order in which they are processed. The VSC indicated that processing times for all these petitions are now in what they consider the normal range, which is about five months.

I-129Fs

The VSC discussed waivers of the requirement that an I-129F petitioner and beneficiary must have met in person in the two years prior to filing the I-129F. When there are medical reasons for the failure to meet, they look for supporting documentation that demonstrates that a meeting would entail extreme hardship; financial hardship generally will not suffice. The documentation would need to include specific information about why the petitioner and beneficiary cannot travel to meet each other, including why they are unable to meet in a third country between the United States and the beneficiary’s home country. There is a high bar to getting a medical waiver for the in-person meeting requirement.

The VSC indicated that they do not receive many waiver requests based on religious or cultural factors. If there are religious and/or cultural reasons for the failure to meet in person, they expect to see evidence from a religious leader that this is the custom in that country or locale. In their experience, they expect that even in religions or cultures that ban meetings of the intended spouses alone, that there may be ways for them to meet with a third party present; such a meeting satisfies the in-person meeting requirement. Their understanding is that such chaperoned meetings are acceptable in most countries these days.

Retention of Priority Dates

CLINIC inquired how the VSC is handling assignment of priority dates in cases in which an LPR spouse has filed an I-130 for a spouse and derivative children, and subsequently files a new I-130 for the children because the principal spouse is inadmissible and thus cannot immigrate.  Will the VSC assign the priority date from the earlier petition to the subsequent I-130s for the derivatives? The VSC indicated that they are currently not making decisions in such cases, but are awaiting guidance from USCIS Headquarters that they understand will be forthcoming.

I-130 Interviews

Advocates at the training noted that USCIS field offices seem to be doing interviews on I-130s for people who are not in removal proceedings. The VSC responded that they have stopped receiving stand-alone immediate relative I-130s for adjudication, and that these I-130s are now being distributed to district offices for adjudication, and that perhaps some district offices have decided to conduct interviews.

If the marriage took place after the beneficiary was put into removal proceedings, the case would be subject to 204(g), and sent to the district office for interview, no matter how strong the evidence of bona fide marriage might be.

I-130 and I-129F Revocations

The VSC does not have statistics on how often I-130s and I-129Fs are sent back from consulates with requests for revocation.  Consular officers return petitions for many reasons, the most typical being that the beneficiary has died, or has already immigrated another way. Other reasons include requesting an additional look into the bona fides of a family relationship, or at whether the relationship is still valid for immigration purposes.

Once cases are returned to the VSC, the VSC does not have a standard processing time. They work these cases as they are received back from the consulate, and as resources and time allow. Sometimes they work easier revocations first. They are currently training a new group of officers to work them.

The VSC does not send receipt notices to applicants when it receives consular returns. The VSC advises that advocates can reach out to VSC and ask for a status report on a returned case.  The VSC should be able to confirm whether or not they have the case, and where it stands in the process.

204(l) Cases

The VSC indicated that if the petitioner or principal beneficiary dies while the petition is at the VSC, that they would like to be informed about the death as soon as possible, even if the priority date will not be current in the near future.

Adam Walsh Act Cases

Since March 2011, the VSC has had sole jurisdiction over Adam Walsh Act cases (cases in which the petitioner has been convicted of a “specified offense against a minor”).  The VSC has a team of seven officers who adjudicate all Adam Walsh cases. The VSC reported receiving about 400 AWA cases last year. It has not yet finished processing all of them, but has approved only two cases, representing about one percent of the total number of cases adjudicated.

Changing Basis of I-751 Waiver After Filing

CLINIC inquired about how to proceed after a couple has filed a joint I-751 petition, and then divorce while the petition is pending. The VSC indicated that upon request, they can in this situation change the petition from a joint petition to a waiver, but that this is the only situation in which they can do so. In any other situation (e.g. changing from a jointly filed petition to a waiver based on death, battery or extreme cruelty, or extreme hardship), the applicant would have to file a new I-751.  This is based on a USCIS Headquarters directive.

Interviews for I-751s

The VSC said that interviews are most likely to occur in cases that lack sufficient evidence of a bona fide marriage. Before they would send a case for interview, they would issue an RFE asking for proof of good faith continuing marriage.  They recommend including evidence from each year of the marriage. Detailed evidence is encouraged; they especially like to see evidence of financial interrelationship. When advocates submit evidence of joint bank accounts, the VSC likes to see a transaction history for the accounts, to demonstrate that the couple really uses the account. Waiver cases, they said, are no more likely than any other cases to be interviewed.

Late Filing I-751s

USCIS may accept late-filed I-751s (filed after the two-year anniversary of the adjustment of status) if the applicant shows “good cause” for the failure to timely file. The VSC noted that there is now language in the instructions for the I-751 that states: “if your failure to file was through no fault of your own, you may file your petition late with a written explanation and request that USCIS excuse the late filing. Failure to file before the expiration date may be excused if you demonstrate when you submit the petition that the delay was due to extraordinary circumstances beyond your control and that the length of the delay was reasonable.” The VSC said that they might consider health or family issues as good causes. They did not provide any time period beyond which it would be too late to file an I-751, but encouraged practitioners to submit a late I-751, with a reasonable explanation for the late filing.  They said that their “policy is pretty liberal, and they aren’t trying to give people trouble.”  They also indicated that in cases in which an I-751 is not timely filed, it generally will take them a long time to put the applicant into proceedings.

Filing Tips from the VSC Adjudicators

Organization of Documents

The VSC indicated that there is no one way they prefer files to be organized, but that organization is extremely helpful to them.  They encouraged advocates to think about how to make it easier for the reader to navigate and comprehend the contents of the file. They find tabs and tables of contents to be hugely helpful.

Translations of Birth Certificates

Advocates inquired whether or not it is necessary to translate every word of a long form birth certificate, or if it is sufficient to translate only the portions that refer specifically to the individual listed on the certificate. The VSC indicated that they prefer to read everything on the birth certificate, no matter how long it is. They added that USCIS Headquarters has told them to ask for full translations of the document, and advised that advocates may therefore begin to see more RFEs asking for full translations.

Communicating with the VSC

The VSC indicated that the National Customer Service Center 800 number is their preferred method for communication. Advocates may also use the VSC@ncscfollowup.dhs.gov email addresses; emails sent to this address are directed to the VSC.

National Visa Center

Role of the NVC

The National Visa Center, which opened in 1994, is part of the Department of State. It handles all immigrant visa pre-processing. The NVC does not do any adjudication; it receives approved petitions from USCIS, and then ensures that all consular processing forms are filled out, all fees are paid, and many of the required documents collected for consular processing. The NVC forwards these completed files to the appropriate consular posts abroad, and in most cases schedules consular interviews and informs applicants about their interview dates. Because the NVC does not adjudicate petitions, there are only five State Department employees at the NVC, and more than 500 contract employees.

The NVC receives approved petitions from all four USCIS Service Centers, and from the NBC; they received I-130s, I-129Fs, I-140s, I-730s, and adoption-related petitions. Currently the NVC is receiving between 8,000 and 10,000 petitions per week.  The NVC stores these cases until they are close to being ready for consular processing.  Currently there are approximately 2.4 million files at the NVC.

The NVC noted that historically, once USCIS approved a case, the NVC would receive it within 15 days. Over the past six months, that timing has changed dramatically. The NVC is finding it is currently taking longer – in some cases as many as six to eight weeks – for cases to be sent to NVC once they are approved. Therefore, they now advise applicants to wait eight weeks following USCIS approval to inquire with the NVC about a case’s whereabouts.

For family-based immigrant visa cases, the NVC keeps track of which priority dates are close to becoming current, and begins to request forms, fees, and documents from applicants. They consider cases to be “document qualified” when the DS-230 or DS-260, the I-864, and all police certificates have been completed and submitted.  Some posts require that also all civil documents have to be submitted to the NVC before the case is considered document qualified.

Once a case is document qualified, and there is a visa available, the NVC considers the case ready for scheduling.  The NVC currently schedules interviews for all consular posts except Guangzhuo, China. Interview dates are typically scheduled 6-8 weeks before the actual interview. Once the interview is scheduled, the NVC sends a letter or email to the petitioner or agent, the representative (if there is one), and the applicant (if there is no agent designated). This letter lists the date and time of the interview, and directs the applicant back to the consulate’s website for further instructions. The NVC currently schedules about 25,000 interviews per month.

Electronic Filing and Processing

The NVC staff said that they are moving forward with Transformation, the process by which all immigration-related processing will take place online.  Eventually the immigrant visa process will be entirely electronic. Currently 80 percent of consular processing fees are paid online, and there are several pilot sites at which immigrant visa applicants must scan all their required documents and submit them to the NVC via email: Ashgabat, Turkmenistan; Damascus, Syria; Kabul, Afghanistan; Ciudad Juarez, Mexico (MEP cases only); Sana’a, Yemen; and Amman, Jordan.  Electronic processing is optional at Guangzhou, China and Montreal, Canada.

Even at all these electronic processing sites, though, the processing is still not fully electronic; USCIS still sends a paper file to the NVC. The NVC then scans that paper file into their system, and asks applicants to submit documents via email. This cuts down case processing time by about half. The NVC said that eventually the entire process will be electronic, and that applicants will be able to scan and upload documents directly into their system, without having to email them.

The DS-260, the fully online immigrant visa application form, is currently in use for cases at 11 posts: Kabul, Afghanistan; Montreal, Canada; Athens, Greece; Baghdad, Iraq; Amman, Jordan; Ciudad Juarez and Mexico City, Mexico; Islamabad, Pakistan; Lima, Peru; Damascus, Syria; and Sana’a, Yemen. DOS plans to expand use of the DS-260 to all other posts, possibly as soon as the end of this summer.

The DS-260 must be filled out online, but it does not appear on screen as a fillable PDF, the way USCIS forms do. Those filling out the form go through it question by question. Advocates at the training asked whether it is possible to get a complete copy of a blank DS-260 as a sample, to aid in working with clients. The NVC said that this is not possible.

DOMA Issues

On the date of the CLINIC training, the NVC was awaiting guidance from the State Department Visa Office on how to handle same-sex marriage issues, in the wake of the Supreme Court decision, U.S. v. Windsor, that struck down the Defense of Marriage Act.

Note that following the conference, on August 2, the State Department issued a cable with guidance on same-sex marriage issues:  http://travel.state.gov/pdf/Next_Steps_On_DOMA_Guidance_For_Posts_August_2013.pdf.

Provisional Waiver Process: I-601A

Applicants for LPR status who will consular process, and will trigger the three- or ten-year unlawful presence bar when they depart the United States, and who are not subject to any other grounds of inadmissibility, may now file a “provisional waiver” application on Form I-601A before departing the country. USCIS then adjudicates that application before the applicant leaves the United States. The NVC stated that as of mid-July, USCIS had received approximately 7,000 provisional waiver applications, and had adjudicated a few hundred of those.

When USCIS approves an I-601A, it notifies the NVC. There is no need to notify the NVC when filing an I-601A, as USCIS does that. Once the NVC learns that an I-601A was filed on a particular case, they put the case on hold, and do not schedule the case for an interview until USCIS notifies the NVC about USCIS’s decision on the provisional waiver application. The NVC indicated that when applicants file I-601As with USCIS, they must keep processing their case with the NVC.  The NVC also advised advocates that I-601A applicants must send their immigrant visa fee receipts along with the I-601A application; the majority of the applications rejected thus far were rejected for failure to include the fee receipt.

Fraud Prevention Unit

The NVC has a Fraud Prevention Unit, established in 2003, that pre-screens certain cases. The unit is staffed by State Department employees, one USCIS officer, and 35 contract support staff.  The unit runs queries in commercial and government databases, as well as through social media sites like Facebook, to give consular officers more information in certain cases. For example, a petitioner might allege that he is divorced, but a search of such databases might reveal that he and his ex-wife have bought property together, and live together. The Fraud Prevention Unit would then provide this information to the consular officer in a memo.

Consular Returns

When a consular officer feels after the consular interview that a petition approval should be revoked, the officer writes a memo explaining why, and sends the case back to the NVC, which then sends the case back to USCIS. If USCIS reaffirms the approval, they return the case to the NVC, which sends the case back overseas to the consulate.

In 2012, the NVC received about 28,000 consular returns, which it generally forwarded to USCIS within 6 or 7 days of receipt. The NVC also returned another 16,000 petitions directly to USCIS, without ever sending them to post, in cases in which it learned that the beneficiary would no longer be eligible for a visa. The NVC noted that when a petitioner (for instance, a U.S. citizen spouse) dies while the petition is at the consular post, the consular officer does not have the authority to convert the case to a widow/er self-petition, and would have to return the case to USCIS.

Tips for Working with the NVC

Communicating with the NVC

If you call the NVC, be aware that Mondays are their busiest day of the week. Their phone lines are open from 7 a.m. to midnight Monday to Friday, and they recommend that the shortest wait times are before 10 a.m. Eastern time, and after 8 p.m. Eastern.

If you email the NVC at nvcattorney@state.gov, put the NVC case number in the email subject line. In the body of the email, make sure to include the petitioner’s name and date of birth, the principal beneficiary’s name and date of birth, and your office information.

When You Receive a Series of Identical RFEs on the Same Case

Several advocates at the training mentioned getting a series of identical RFEs (which the NVC calls “checklist letters”) from the NVC, asking for something that the advocate believed he or she had already sent. The NVC explained that they use template checklist letters, and that advocates who find themselves in this situation can email the NVC and ask for the case to be escalated to a supervisor for review and clarification. The NVC also noted that they are working on modifying their checklist letters so that if they need to respond to an advocate a second or third time on the same case, they will not necessarily send a checklist letter identical to the first one they sent.

Correcting Mistakes in Previously Submitted DS-260

The DS-260 is submitted online; once an applicant submits the completed form, there is no way to go back and correct any mistakes. The NVC informed participants at the conference that if an applicant needs to correct a previously submitted DS-260 for a case that is still at the NVC, the advocate can contact the NVC (via email or telephone) and they can “unlock” the form so that the applicant can go back in and amend it.  Once the case has been scheduled for an interview, however, the NVC can no longer unlock the form, and the applicant would have to inform the consular officer of the correction during the interview.

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