This practice advisory provides background and analysis on recent decisions issued by the BIA regarding immigrating through a marriage-based petition.

This article summarizes the CSPA, how it applies to Afghan SIV applicants, and the recent changes in the SIV petition process.

For immigration purposes, the legality of a marriage celebrated in the United States subsequent to a foreign divorce depends on whether the foreign divorce is recognized as valid by the state where the subsequent marriage has taken place. In this context, a federal appellate court interpreting Virginia law held that Virginia would recognize a divorce in Ghana between two Ghanaian citizens even though neither party was domiciled or residing in Ghana at the time of the divorce.

The Board of Immigration Appeals, or BIA, held that a conditional permanent resident cannot use an INA § 237(a)(1)(H) waiver to prevent deportation where the person’s termination of a conditional residency was based on failure to file a joint petition. Similarly, a 237(a)(1)(H) waiver cannot be used in lieu of, or together with, a “good faith” waiver under section 216(c)(4)(B) to waive the requirement to file a joint petition to remove the conditions on residence.

Recent increases in USCIS processing times for adjudicating Forms I-765, Applications for Employment Authorization, have created hardships for many noncitizens who have been unable to seek employment, have had to temporarily stop working, or have lost their jobs altogether. This advisory provides tips for immigration practitioners to minimize the risk that clients’ employment authorization will lapse and to advocate for faster adjudication once a Form I-765 has been filed.

On Jan. 27, 2022, CLINIC hosted a webinar with officials from the U.S. consulate in Ciudad Juarez (CDJ). During the session the officials responded to several questions on current operations at the consulate and general tips on visa processing. This article provides a summary of the question and answer session.

A surviving derivative spouse and children of an Afghan who qualifies under the Special Immigrant Visa program may be eligible to continue with the SIV program after the principal applicant has died. Practitioners should be aware of the possibility of continuing with the SIV process in these circumstances.

The Board of Immigration Appeals (BIA) held that immigration judges may inquire into the bona fides of a marriage when adjudicating an application for adjustment of status, even though the underlying I-130 petition had been approved by USCIS. The BIA also held that a complete and accurate transcript of proceedings is essential in order to adjudicate an appeal that turns on the credibility of witness testimony.

On Aug. 5, 2021, U.S. Citizenship and Immigration Services, or USCIS, updated its policy guidance in the USCIS Policy Manual regarding whether a child born outside the United States, including one born through the use of Assisted Reproductive Technology (ART), is considered to be born “in wedlock” under the Immigration and Nationality ACT (INA). This article summarizes the new guidance and provides further analysis on its practical implications for practitioners.

The naturalization of a petitioner usually benefits a child who is the beneficiary of a petition filed by the parent but not always. The Child Status Protection Act affords relief to most of those who would be adversely affected by the parent’s naturalizing but not all of them.

This article answers frequently asked questions about when DNA testing can be relevant to an immigration benefit application. It addresses the DNA testing process, U.S. Citizenship and Immigration Services and Department of State policy guidance, when it can be submitted preemptively, and current challenges in obtaining and relying upon DNA evidence.

The Board of Immigration Appeals has issued three decisions in the past year relating to marriage fraud and INA § 204(c). The BIA has affirmed the far-reaching power of the marriage fraud bar, which can impede a client’s ability to ever obtain permanent resident status.

On Dec. 8, 2020, CLINIC hosted a webinar with speakers from the U.S. Consulate in Ciudad Juarez (CDJ) and the National Visa Center (NVC.) Responding to questions from CLINIC attorneys Charles Wheeler and Kristina Karpinski, the speakers addressed several key issues relating to the current status of consular processing and what to expect in the months ahead. This article summarizes the question and answer session.

The Biden campaign listed a number of immigration-related priorities that his presidency would tackle if elected. Most of these could be accomplished through executive orders, regulations, or changes to policies and procedures rather than requiring legislation.

Section 204(c) of the Immigration and Nationality Act bars a petition from being approved where the petition beneficiary previously participated in a fraudulent marriage. This significant penalty applies even if the individual never actually received an immigration benefit through the fraudulent marriage. But what if an I-130 filed by your client’s previous spouse was denied due to insufficient evidence? When your client now seeks to immigrate through an I-130 filed by a new U.S. citizen spouse, can USCIS re-examine the first marriage and now determine it was fraudulent?

U.S. Citizenship and Immigration Services (USCIS) recently amended its Policy Manual to confirm that conditional resident status “terminates” when the agency issues a formal notice to that effect. This resource offers needed clarifications on the change.

The Department of State (DOS) briefly changed the requirements for sponsors who must submit evidence of tax filing, along with the affidavit of support. The DOS website indicated that sponsors must submit a tax transcript rather than a copy of the Form 1040 that they filed with the Internal Revenue Service (IRS).

You are interviewing a new LPR client and advising him to file an I-130 petition for his unmarried daughter. You come to the part of the interview where you need to tell him how long it will take after you file the petition in the F-2B category before you can start the second stage—filing for permanent residence. The easiest thing to do is pull out the most recent Visa Bulletin and make an informed guess. However, is that the best you can do?

When can you expect U.S. Citizenship and Immigration Services to require an interview of your conditional resident client in order to adjudicate his or her Form I-751 petition? The answer to that question is likely to be impacted by new guidance issued by USCIS on Nov. 30, 2018. Under the new guidance, applicable to both I-751 joint petitions and waivers filed on or after Dec. 10, 2018, a waiver of interview is appropriate where:

This section of the toolkit includes resources to help you represent clients who are seeking to immigrate through family-based immigration. Posted practice materials can help you with adjustment of status, consular processing, conditional residence and I-130 petitions.

On November 19, 2018 the Board of Immigration Appeals, or BIA, held that an applicant for adjustment of status who was admitted on a K-1 visa, fulfilled the terms of the visa by marrying the petitioner within the required 90 day period, and was later divorced, must submit an affidavit of support from the K-1 petitioner to establish that he or she is not inadmissible as a public charge.  Matter of Song, 27 I&N Dec. 488 (BIA 2018).

The Child Status Protection Act, or CSPA, was enacted in 2002 in an effort to prevent certain children from aging out while they wait to immigrate on a family-based petition. It helps lock in the age and preserve the “child” status of both immediate relatives and those in the preference categories. However, it works differently for both groups; and the filing strategy for permanent residency may depend on how old the child is at the time and whether he or she is filing to adjust status or consular process.

The Ninth Circuit recently upended a long-held interpretation of the Child Status Protection Act. Read more to see how this affects a child’s immigration classification when the petitioning parent naturalizes.

Mexican nationals, or other immigrants who have lived in Mexico for more than six months, who are 18 years old or older, must now include police certificates with immigrant visa applications.

In the almost 15 years since the Child Status Protection Act was implemented, most practitioners probably have a basic grasp of the fundamental principles. But it has subtleties and more areas of complexity. Let’s do a quick review.

The Board of Immigration Appeals had welcome news about DNA test results for families that had been unable to establish sibling relationships through other types of evidence alone.

The State Department recently modified the Foreign Affairs Manual regarding what actions satisfy the one-year filing requirement under the Child Status Protection Act (CSPA). 9 FAM 502.1-1(D)(6). That law allows children in the F-2A category, as well as derivatives in all preference categories, to remain “children” after turning 21. They are protected and locked in as “children” if they are under 21, using their CSPA age, when their priority date becomes current in the F-2A category. Use Chart A, Application Final Action Dates, to determine when the priority date becomes current.

Beneficiaries of approved I-130 petitions who are from Iraq or Syria are now able to qualify to apply for refugee resettlement. The new program is called Priority-2 (P-2) Direct Access Program for Iraqi and Syrian beneficiaries of an approved Form I-130 Petition for Alien Relative. The benefit is that these family members would gain access to the U.S. Refugee Admissions Program, but the applicant would still need to meet the definition of a “refugee” and be interviewed and screened.

In a 2015 precedent decision, the BIA held that an adoption is valid for immigration purposes – even if the child turned 16 at the time of the final order – if the adoption petition was filed before the beneficiary's 16th birthday and the state court has allowed the order to be backdated. Matter of R. Huang, 26 I&N Dec. 627 (BIA 2015).

But what if the adoption petition was filed after the child's 16th birthday? Can a retroactive decree still prevail?

The USCIS issued a memo recently that gives nationwide application to a court decision regarding widow(er) benefits.  Under current law, when a U.S. citizen spouse dies, the surviving spouse can self-petition for permanent resident status.  See INA § INA 201(b)(2)(A)(i). The limitations are that the widow(er) must file the Form I-360 petition within two years of the U.S. citizen spouse’s death and the widow(er) must not have re-married.

Even though the current affidavit of support rules were implemented almost 20 years ago, and practitioners have been operating with final regulations for the last nine years, CLINIC continues to experience a steady stream of questions and requests for assistance from affiliates attempting to complete the I-864.

The Department of State (DOS) recently confirmed that it will accept payment of the immigrant visa fee as satisfying the one-year filing requirement under the Child Status Protection Act.  In order for a child in the preference category to retain the “under 21” age status, and thus remain in the F-2A or derivative category, he or she must has “sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability.”  INA § 203(h)(1)(A).  The USCIS and DOS have consistently held that this could only be satisfied by filing one of three forms: an

In a recent decision the Board of Immigration Appeals held that after-acquired derivatives are not eligible to be considered “grandfathered” for purposes of eligibility for section 245(i) adjustment of status. Matter of Estrada, 26 I&N Dec. 180 (BIA 2013).  This decision clarifies but is consistent with prior USCIS memos interpreting this provision.