By Kristina Karpinski and Susan Schreiber
On May 20-21, CLINIC conducted a two-day family-based immigration conference in Manchester, New Hampshire. The training included two panels where officers from the Vermont Service Center (VSC) addressed family-based immigration issues, VAWA self-petitions, and applications for U status. On May 22, training participants visited the National Visa Center (NVC) in Portsmouth, New Hampshire and had an opportunity to address questions to NVC Director Kimberly Kelly and NVC staff about consular processing. Highlights from the VSC panel presentations and the meeting with NVC staff are described below.
VSC Updates on Family-Based Immigration
VSC Staff and Petition Processing
The VSC currently has approximately 1,000 federal employees including 600 adjudicators. New adjudicators have mentors and coaches and must do a certain number of cases before they can adjudicate cases on their own. Adjudicators receive form-specific training and will generally work with that form for at least six months before taking on adjudication of a new form.
Cases are processed by adjudicators in receipt order. All petition denials are reviewed by a supervisor regardless of form type. If an approved petition is inappropriately routed for adjustment of status instead of consular processing, this may be corrected by contacting the National Customer Service Center.
A petitioner may decide to submit DNA evidence proactively, without waiting for a request for more evidence of relationship. Petitioners pursuing DNA evidence after RFE issuance should notify the VSC if the test results are still pending by the RFE response date. The VSC cannot extend the RFE deadline but will generally delay making a decision until after the DNA results are received. DNA results must come from an accredited lab and the petitioner’s A# or the petition receipt number should be given to the lab at the time of testing. Where DNA evidence is not submitted and the petition is denied for lack of evidence of relationship, the petitioner may consider submitting DNA test results in connection with a motion to reopen or an appeal.
Stepparent/Child Petitions After Death of Biological Parent or Divorce
A petition based on stepparent/child relationship may be approved where the relationship between the step and biological parents has ended if there is evidence that the stepparent and stepchild have an ongoing relationship. Such evidence may include school records, permission slips, insurance records, tax returns, and other evidence showing financial and emotional ties between the stepparent and the stepchild.
The VSC receives petition returns on a monthly basis from the NVC based on a variety of reasons, including suspect relationship (particularly in marriage and fiancée cases), and deceased petitioners and beneficiaries. Returned petitions are assigned to an adjudicator for review, and may result in issuance of an RFE. VSC adjudicators reviewing petition returns do not consult social media sites. There is no time frame for petition return adjudication.
Adam Walsh Act
The VSC Adam Walsh team was formed in 2008 and since then has reviewed approximately 2,500 cases. After a petition is forwarded to the team, the file is reviewed by an officer to see
if it is properly documented to show the relationship between petitioner and beneficiary. Once that is established, a Notice of Intent to Deny is sent to the petitioner, who may either seek to prove that underlying crime was not a specified offense against a minor, or that the petitioner poses no risk to the beneficiary. The approval rate for petitions subject to Adam Walsh protocols is exceptionally low. Of 601 cases reviewed last year, the VSC panelists estimated that fewer than 10 were approved.
The current processing time for I-751 cases is about six months. Applicants submitting late joint I-751 petitions need to assert good cause based on reasons other than simply forgetting to file. This may include circumstances that triggered forgetting to file, like illness, death in family, marriage of son or daughter, or other major life events.
A joint petition may be converted to a waiver case without filing a new I-751 where the change is based on divorce or death of the petitioner spouse. Where the applicant wishes to apply for a battered spouse or hardship waiver after first filing a joint petition, the VSC cannot process that change. VSC recommends that applicants in this situation ask the VSC to forward the case to the field office, which can respond to this request to change the basis of the I-751 application.
If an I-751 application is approved before VSC has been notified of a change in circumstances impacting on the approvability of the petition, applicants should notify the VSC to reopen and correct the adjudication. This may happen, for example, where an applicant is divorced while an I-751 joint petition is pending and VSC approves the petition before receiving notification of the divorce.
USCIS is no longer scheduling random interviews for I-751 petitions; cases scheduled for interview are those needing additional proof of the bona fides of the marriage. If an I-751 application is approvable as filed, an interview will not be scheduled.
VSC Updates on VAWA and U Visa Cases
The I-360 petition will be updated soon to include all eligible self-petition categories. VSC does not track self-petitions by category of eligibility, but officers stated that they are seeing more self-petition cases based on abused parents of U.S. citizens than cases of abused sons and daughters filing between the ages of 21 and 25.
The VSC speakers confirmed that an aged-out VAWA derivative is a considered a self-petitioner and may file for adjustment even if the principal self-petitioner does seek to adjust status.
USCIS is in the process of consolidating guidance on VAWA self-petition issues to be included in a new chapter of the USCIS policy manual. This new guidance will address issues including waiving the permanent bar and avoiding reinstatement for self-petitioners with prior removal orders.
The VSC will not be taking over adjudication of VAWA self-petitioner applications to adjust status. Delays in forwarding adjustment applications to the NBC have been addressed, and cases are now being forwarded to the NBC on a weekly basis. In some instances, the adjustment adjudication delays may be due to the field office not contacting the applicant for an interview, although the file was already forwarded to the district by the NBC.
VSC has already processed 10,000 conditional U approvals for FY 2015 and is now working on cases that will be charged to the FY 2016 U approval cap. U applicants with conditional approval will not be able to use that time to meet the three-year continuous presence requirement for adjustment of status.
VSC will issue a notice of intent to revoke U status in cases involving fraud, error in approval, withdrawal of law enforcement certification, and divorce. Currently, VSC is holding in abeyance cases involving U -3 derivatives who marry, waiting for more guidance on this issue.
A nonimmigrant visa holder who applies for U status and then travels abroad must apply for a U visa to return to the United States if the U status application is approved while the nonimmigrant is still abroad. If the nonimmigrant only receives a conditional approval, then s/he may return to the United States using the existing nonimmigrant status.
U adjustment applicants who file after U status has expired may file an I-539 application to extend status concurrent with the adjustment application. The applicant should explain the reasons for the late filing, and detail any extenuating circumstances or events that delayed filing that were outside the applicant's control. Adjustment applicants who still have derivatives abroad waiting to enter on a U visa should ask the VSC to hold the adjustment application in abeyance.
Updates from the National Visa Center
NVC Receipt of Approved Petitions
NVC receives approved petitions from all USCIS Service Centers. The petitions include I-130s, I-140s, I-360s, I-129Fs, I-730s, and adoption petitions. NVC reports it can take 6-8 weeks for USCIS to forward an approved I-130 to NVC. If more than 8 weeks have passed since approval, NVC can reach out to USCIS to track down the case. Sometimes files are misrouted to another USCIS Service Center or remain at the original Service Center waiting for a bulk shipment. NVC must receive the original petition from USCIS before it can begin processing of the case. After 8 weeks, petitioners, applicants and representatives can contact NVC to request assistance in locating an approved I-130 file.
NVC continues to increase its use of electronic procedures to communicate with visa applicants and to process immigrant visa forms and documentation. Currently, 45 percent of NVC correspondence is sent by e-mail. NVC encourages applicants, petitioners and representatives to provide an e-mail address by either writing it on the USICS petition or by sending it directly to NVC. Also, 85 percent of fees are now paid online through the Consular Electronic Applications Center (CEAC) Immigrant Visa Invoice Payment Center. NVC reports that the Electronic Processing Program, which requires immigrant visa applicants processing at select consulates to scan and e-mail documents and the I-864 affidavit of support, decreases the processing time by about a half. While this pilot program is considered a success, the software used has limitations and no new consulates will be added to the program. Additionally, several months ago NVC stopped assigning new cases for electronic processing through Ciudad Juarez. Therefore all new cases processing through CDJ will require that original civil documents, the I-864 affidavit of support, and other supporting documentation be mailed to NVC. In place of the pilot electronic processing program, NVC will soon introduce a new electronic system in which applicants will scan and upload their documents directly to NVC through CEAC and won't have to e-mail them.
When a petition was originally submitted to USCIS without representation or by a different representative, an attorney or BIA accredited representative can be added to a case at NVC by submitting a G-28, Notice of Appearance. NVC recommends submitting the G-28 by e-mail to NVCAttorney@state.gov. Once the G-28 is received, the new representative will receive correspondence about the case and will be able to inquire about the status of the case. NVC recommends submitting a new G-28 even if the change in representation is within the same agency.
If a representative wants to withdraw from a case, he or she should send an e-mail to NVCAttorney@state.gov. Once representation is withdrawn, NVC will send all correspondence to the applicant and petitioner or new representative if there is one.
When communicating with NVC by e-mail, the subject line should contain the NVC case number. The e-mail should include the petitioner’s name and date of birth, the principal beneficiary’s name and date of birth, the representative’s full name, and the agency or firm name and address. The communication should be limited to one case per e-mail.
Derivative Consular Processing
If the principal beneficiary adjusted status in the U.S., a form I-824, Application for Action on an Approved Petition, should be filed with USCIS. Once approved, USCIS will send the approval to NVC and begin consular processing. If instead, the principal beneficiary obtained an immigrant visa abroad and a derivative wishes to later follow-to-join the principal, the process needs to be initiated at the specific consular post abroad.
Provisional Unlawful Presence Waivers
When an applicant submits an I-601A provisional waiver to USCIS, NVC will automatically be notified by USCIS. NVC will not send a case to the consulate and schedule the immigrant visa interview until further notification by USCIS that a decision was made on the waiver. It is no longer required, and even discouraged by NVC, for applicants to e-mail NVC stating their intention to file the I-601A. NVC has found that many applicants who have e-mailed in the past, never filed waivers. Instead of keeping those cases on hold, NVC has sent those cases to the consulates for the visa interview if all the required forms and documents have been submitted. If an applicant submits an I-601A after the case has been scheduled for an interview, he or she can make a request to the consulate that the interview be rescheduled.
Affidavit of Support Issues
NVC does a technical review of the I-864 affidavit of support and accompanying documents submitted by the petitioner/sponsor and co-sponsors. Advocates have reported an increase in requests by NVC for new I-864s. NVC explained that when the form is not properly completed, NVC can't send back the form for correction because of privacy concerns and must request a new form. NVC made some recommendations to avoid a request for a new form or documentation.
- Don't leave any blank spaces on the form. Write N/A if the question is not applicable.
- Be careful in properly calculating the household size in Part 5. Do not count anyone twice.
- In completing Part 6, question #13, the sponsor must fill in the total income reported on his/her federal tax returns for the last three years. The amount should match exactly what is on the return, so if a joint return was filed, the amount should include the spouse's income. When it is a joint return, NVC requests that both the sponsor's W-2 and the spouse's W-2 be submitted. However, an I-864A is not required if sponsor's income is sufficient for his/her household size. If a consulate is improperly requesting an I-864A in this situation, NVC recommends contacting firstname.lastname@example.org.
- NVC recommends getting tax return transcripts from IRS online or by mail.
- If submitting an employment letter as evidence of current income, make sure the letter was signed within the last 90 days.
F-2B Immigrant Visa Processing Without Separate I-130 Petition
NVC is awaiting guidance from USCIS on whether aged-out derivatives from the F-2A category who automatically convert to the F-2B category and have a current priority date, may seek an immigrant visa without the petitioner having filed a second I-130 petition. In a November 2013 memo, USCIS provided guidance on this issue for those seeking adjustment of status. If an aged-out F-2A derivative beneficiary is current in the F-2B category and is otherwise eligible for adjustment of status, he or she may file an I-485 application without the petitioner having filed a separate I-130. NVC indicated they are aware of this issue and are willing to proceed with the consular processing of these cases after receiving guidance from USCIS and making the necessary changes to their internal systems. Further information on this issue will be provided when received from NVC.