OVERVIEW OF THE APPLICATION PROCESS

Transcription

1 CHAPTER 2 OVERVIEW OF THE APPLICATION PROCESS FOR PERMANENT RESIDENCE First Step: Filing the Petition for Alien Relative (I-130) Introduction The Petition for Alien Relative (Form I-130) and its supporting documentation establish that the petitioner is either a U.S. citizen (USC), a lawful permanent resident (LPR), or a U.S. national and that the claimed relationship to the alien beneficiary is a legally qualifying one. 1 When U.S. Citizenship and Immigration Services (USCIS) adjudicates the petition, it must verify the status of the petitioner and the validity of the relationship. The agency is not screening for potential inadmissibility or eligibility for adjustment of status; that occurs should the applicant file a separate form and seek that immigration benefit. For purposes of completing the I-130, the petitioner, or more precisely the you indicated in the form, is the USC, LPR, or national who is petitioning for the alien relative. The intending immigrant is the beneficiary. Who May File an I-130? As explained in chapter 1, immediate relatives are defined as the spouse, parents, and unmarried children (under age 21) of USCs. 2 All other qualifying relationships fall within the preference categories. 3 These include the siblings, unmarried sons and daughters (over age 21), and married children or sons and daughters of USCs. They also include the spouses and unmarried children or sons and daughters of an LPR. Different rules apply for family dependents, or derivatives. The term derivative includes the spouse and unmarried children under 21 of the principal beneficiary in the preference categories. In those cases, the derivatives may immigrate without the need to file a separate I-130 petition, provided they have that relationship at the time the principal beneficiary immigrates and at the time they immigrate. 4 Derivative relationships include the spouses of the principal beneficiary immigrating through the third- and fourth-preference categories. Unmarried children under 21 may immigrate as derivatives of the principal beneficiary in the first, second, third, and fourth-preference categories. 1 8 CFR 204.1(a)(1). 2 INA 201(b)(2)(A)(i). 3 INA 203(a). 4 8 CFR 204.2(d)(4). 18

2 In most cases, the petitioner is not able to file a separate I-130 petition on the derivative s behalf. For example, a USC may not file a separate I-130 petition for the spouse and children of a married child in the third-preference category or the spouse and children of a sibling in the fourth-preference category. Only when an LPR is petitioning for his or her spouse does he or she have the option of including the unmarried children under 21 as derivatives or filing a separate petition on their behalf. The derivative beneficiaries will need to file separate applications for adjustment of status or an immigrant visa. They will be considered accompanying the principal beneficiary if they immigrate or adjust concurrently or within six months; they will be following-to-join if they immigrate more than six months later. 5 Petitioners seeking to immigrate immediate relatives must file a separate I-130 for each family member, since immediate relatives cannot immigrate derivatives. 6 For example, if a USC is seeking to immigrate a spouse and stepchild, he or she must file a separate I-130 for each person and pay separate filing fees. Similarly, if a USC child over age 21 is petitioning for his or her parent, the parent s spouse or unmarried child may not immigrate as derivatives, since the parent is an immediate relative. In that case, the USC must file a separate I-130 petition for the stepparent and sibling. If the spouse of the parent does not qualify as a stepparent, or the child of the parent as a sibling, they would need to wait until the parent the principal beneficiary immigrates. That parent, once an LPR, then may file a second-preference petition for the spouse and child. Completing the I-130 Part A The form is completed by the USC, national, or LPR. The first questions ask for the petitioner s relationship to the alien relative and whether it is based on adoption. The qualifying relationships, including those for adopted children, are set forth in chapter 1. Part B The next part, Part B, asks for basic information regarding the petitioner: full name, current address, place and date of birth, gender, marital status, date and place of present marriage, Social Security number, information on prior marriages, and information on how citizenship or LPR status was obtained. Type the petitioner s last name in capital letters. Give the petitioner s current address, even if it is temporary or the petitioner is residing abroad. If the petitioner resides in certain specified countries, he or she may file the petition with the USCIS office abroad. 7 Be aware, however, that the petitioner eventually must complete an affidavit of support, which re CFR 40.1(a)(1). 6 8 CFR 204.2(a)(4). 7 8 CFR 204.1(e)(2). 19

3 quires that he or she be domiciled in the United States. 8 Information regarding place and date of birth should be taken from the birth certificate. Be sure to include all other names used by the petitioner, including aliases and maiden names. If the petitioner is married, take the information on date and place of present marriage from the marriage certificate. Only include Social Security numbers obtained lawfully by the petitioner from the Social Security Administration, not fictitious or borrowed ones. Indicate whether the petitioner has any prior marriages, including the names of prior spouses and dates the marriages were terminated. Note that if the petitioner is an LPR who obtained such status through marriage, and the petitioner is seeking second-preference classification for an alien spouse, certain requirements must be met. 9 Either (1) five years must have elapsed since the date the petitioner acquired LPR status; 10 (2) the petitioner must establish through clear and convincing evidence that the prior marriage was not entered into for purposes of evading the immigration laws; 11 or (3) the prior marriage terminated through the death of the petitioning alien s spouse. 12 If five years have elapsed since the date the petitioner acquired legal residency, USCIS cannot use the clear and convincing evidence standard to deny a petition filed on behalf of petitioner s new spouse. 13 If the petitioner is an LPR, indicate the date and place of adjustment of status or the date the LPR first used the immigrant visa issued by the consulate to gain entry to the United States. Part C Part C asks for information regarding the beneficiary. Type in the beneficiary s name and refer to his or her birth certificate, passport, or I-94 (Arrival-Departure Record). If there are any inconsistencies, explain the reason on an attached piece of paper. Give the alien s current address, even if it is temporary. If the beneficiary and the petitioner are spouses residing in the United States and not residing together, this will raise suspicions and may result in USCIS conducting an investigation or interview regarding the validity of the marriage. However, the fact that the couple is not currently living together is not, in and of itself, a valid basis for denying the visa petition. 14 List the beneficiary s place of birth; take the information from the beneficiary s passport. The beneficiary s country of birth may have significance for a preference-category petition, since the availability of a visa in a particular category may 8 INA 213A(f)(1)(C). 9 INA 204(a)(2)(A). 10 INA 204(a)(2)(A)(i). 11 INA 204(a)(2)(A)(ii). 12 INA 204(a)(2)(B). 13 Matter of Pazandeh, 19 I&N Dec. 884 (BIA 1988). 14 Matter of McKee, 17 I&N Dec. 332, 334 (BIA 1980). 20

4 depend on the beneficiary s country of birth. 15 List any other names used by the beneficiary, including maiden names, but if none, so state. If the beneficiary is currently married, list the date and place of the marriage; that information should be found in the marriage certificate. List only valid Social Security numbers. The alien registration number refers to that number assigned to LPRs, persons placed into removal proceedings (including prior deportation or exclusion), and persons who have otherwise been involved in an investigation conducted by USCIS. If the person has an A number, that may indicate to the Department of Homeland Security (DHS) that the alien is in proceedings. Aliens who marry while in deportation, exclusion, or removal proceedings (but not rescission proceedings) are subject to a two-year foreign residency requirement before the I-130 may be adjudicated. 16 Alternatively, the petitioner must establish by clear and convincing evidence that the marriage was entered into in good faith and not for immigration purposes. 17 Provide information on all prior marriages. Indicate whether the beneficiary has ever been and is currently residing in the United States, since this will be important in determining eligibility for adjustment of status. It will also be important in determining if the beneficiary has incurred any periods of unlawful presence, which is defined in chapter If he or she is currently in the United States and arrived as a nonimmigrant, write down the following information, taken from the I-94: the 11-digit I-94 number, date of arrival, date authorized stay will expire or did expire, and the letter designation of the nonimmigrant status at entry (e.g., B-1/B-2, F-1). If the beneficiary is currently in the United States but entered without being inspected or was paroled into the country, enter that information on the form. This information may also be important in determining eligibility to adjust status. 19 Provide the name and address of the beneficiary s present employer, as well as the date the beneficiary began employment. This information could be used by USCIS to begin an investigation as to whether the employer violated the statute relating to employment of aliens who are unauthorized to work. 20 It also could be used to determine if the alien worked without authorization and thus is ineligible for adjustment of status. (That requirement does not apply to immediate relatives who entered the United States with inspection.) 21 Once the federal agency begins again to enforce civ- 15 INA 202(e). 16 INA 204(g). 17 INA 245(e)(3). 18 INA 212(a)(9)(B), (C). 19 INA 245(c), (i). 20 INA 274A. 21 INA 245(c). 21

5 il document fraud under Immigration and Nationality Act (INA) 274C, this information also could be used to commence those actions. Indicate whether the beneficiary has ever been in exclusion, deportation, removal, rescission, or judicial proceedings. Provide the date and place where the proceedings took place. This information may be important in determining whether the beneficiary married while in immigration proceedings. If the beneficiary has been deported or removed from the United States and has not remained outside the country for the required period of time, he or she may need to file a request for permission to re-enter. 22 If the beneficiary in that situation re-entered the United States after April 1, 1997, he or she may have triggered a more serious bar under INA 212(a)(9)(C), which is described in chapter Be aware that USCIS is enforcing INA 241(a)(5), which allows for the reinstatement of deportation or removal orders, immediate physical removal from the country, and ineligibility for adjustment of status. 24 This occurs when the alien left the United States under an order of deportation, exclusion, or removal and subsequently reentered illegally, regardless of the date of re-entry. In addition, aliens who were ordered deported in absentia are inadmissible for five years after their departure 25 ; those who were granted voluntary departure but failed to leave on time may be barred from adjusting status, as well as other forms of relief, for up to 10 years. 26 If the alien is currently in proceedings (pending before an immigration judge or the Board of Immigration Appeals), he or she may be eligible to file for adjustment of status with the Executive Office for Immigration Review (EOIR). If the alien was previously in immigration proceedings and received a final order that has not been effected by a subsequent departure, he or she may have to move to reopen the proceedings to apply for adjustment before the immigration judge. 27 The trial attorney may have to consent to this motion to reopen. 28 Part C continues with a question regarding the name, date of birth, and country of birth of the alien relative s spouse and children. If the petition is being filed on behalf of a spouse, do not include the name of the petitioner. Refer to the section above on who can file an I-130 to determine which relatives require separate I-130 applications and which can immigrate as derivatives, or family dependents, with the principal beneficiary INA 212(a)(9)(A)(iii). See chapter 7 for more information and a sample Form I-212 application. 23 INA 212(a)(9)(C) CFR INA 212(a)(6)(B). 26 INA 240B(d). 27 INA 240(c)(7)(C) CFR (c)(3)(iii). 29 See 8 CFR 204.2(a)(4), (d)(4). 22

6 Give the address in the United States where the intending immigrant plans to reside. If this is different from the address where the petitioning spouse currently resides and the parties do not intend to reside together, this will raise suspicions and may result in an investigation or interview to determine if the marriage is bona fide. List the beneficiary s foreign residence, if any, in response to question 19. If a foreign address was listed in part C, question 2, put the same address here. Most nonimmigrants (except for H-1, L-1, and E visa holders) must maintain a foreign address that they have no intention of abandoning as a condition to their status. 30 In a spousal petition, list the address where the couple last resided together. If they are currently residing together, that address should be the same as that listed in part B, question 2. If the parties have never resided together, the same suspicions may be raised as to the legitimacy of the marriage, and an investigation and marriage interview may result. In order to respond to question 22, the petitioner must understand the eligibility requirements for adjustment of status. 31 These are set forth in chapter 3. If the alien relative cannot meet the adjustment requirements, he or she will be processing abroad at a U.S. consulate. 32 These eligibility requirements and differences are set forth below. If you know that the intending immigrant will be consular processing, indicate the appropriate consular office. It normally will be in the country of the alien s citizenship and in the city of the U.S. consulate closest to the alien s place of residence or last residence abroad. 33 Consult the Department of State s website to obtain the addresses of the consulates abroad, their geographic jurisdictions, their contact information, and whether they process immigrant visas. Do not designate a consulate other than the appropriate one unless prior arrangements have been made. Part D Part D asks for miscellaneous information. If the petitioner simultaneously is submitting I-130 petitions for other relatives, indicate their names and relationship. If the petitioner has ever submitted an I-130 petition for this or any other alien in the past, include that information as well. If the petition was for the same alien relative and the petition was denied, do not refile unless the facts have changed or new evidence can be supplied to overcome the reasons for the denial. Indications that the petitioner has filed other petitions for prior alien spouses may raise suspicions about the validity of the present marriage. The petitioner, not the alien relative, signs the I Anyone who assists in preparing the I-130, even if a separate G-28 is filed, 35 also should sign the petition at the 30 INA 214(b) CFR 245.1(b), (c). 32 INA 221, Foreign Affairs Manual (FAM) N1.1, N1.2, N CFR 204.1(d)(1). 23

7 end of the form. If you are an attorney or accredited representative, you should sign the form. If you are not, but work for an agency that has attorneys or accredited representatives on staff, one of them should sign the form after reviewing it. Supporting Documentation The petitioner must attach certain supporting documents to establish U.S. citizenship, U.S. national, or LPR status, and familial relationship to the beneficiary. 36 Read the instructions on the I-130 form for detailed information on the specific documents that are required. The instructions require the petitioner to provide a photocopy of each required document only. If the petitioner submits an original, USCIS may retain it for their records. Submit a translation of all documents in a foreign language, along with a certification that the translation is accurate and the translator is competent to translate. 37 The regulations require a translation of the document in its entirety, but some USCIS service centers and district offices accept summary translations of common foreign documents. Primary evidence consists of official government documents that are properly authenticated or certified. Secondary evidence would include records that are made or recorded contemporaneously with the event in question, such as baptismal, hospital, church, school, or employment records. When petitioners have established that primary evidence listed in the Foreign Affairs Manual is generally unavailable in that country, or that they are unable to obtain a copy of the official document, they may submit secondary evidence. 38 The rules for establishing this and the types of acceptable secondary evidence are set forth in the regulations. 39 Secondary evidence also could include affidavits from persons with personal knowledge of the event. 40 The standard of proof that the petitioner must satisfy is the preponderance of the evidence. 41 This means that it is more likely than not that the statements are true and that the relationship is valid. 42 There are three situations, however, in which the petitioner must satisfy a higher standard, that of clear and convincing evidence, which must be enough to produce a firm belief or conviction that the relationship is valid. 43 If the petitioner is an LPR who obtained that status within five years through a prior marriage to a USC or LPR, and the prior marriage did not end through death of the spouse, the petitioner must establish through clear and convincing evidence 35 8 CFR CFR 204.1(f)(1) CFR 204.1(f)(3) CFR 204.1(f)(1) CFR 204.1(f), (g) CFR 204.1(g)(2)(ii). 41 Matter of Soo Hoo, 11 I&N Dec. 151 (BIA 1965). 42 See U.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987). 43 Matter of Carrubba, 11 I&N Dec. 914 (BIA 1966). 24

8 that the prior marriage was entered into in good faith. 44 If the alien spouse married a USC or LPR while in immigration proceedings and the alien has not subsequently resided abroad for two years, the petitioner must also meet that higher burden to establish the bona fides of the marriage. 45 And if the petitioner submitted a previous I- 130 for the same beneficiary that was denied or withdrawn, USCIS may require additional evidence to establish the relationship. 46 The following documents must be attached: Petitioner s evidence of U.S. citizenship, U.S. national, or LPR status. Acceptable primary and secondary evidence of citizenship are listed in the regulations. 47 Primary evidence of U.S. citizenship includes the following: birth certificate if born in the United States; certificate of naturalization; certificate of citizenship; valid unexpired U.S. passport; or Form FS-240, Report of Birth Abroad of a U.S. Citizen. 48 U.S. nationals should submit a copy of a U.S. passport, certificate of identity showing U.S. nationality, or a birth certificate. 49 Primary evidence of LPR status includes a copy of the I-551, Permanent Resident Card, or a stamp in the foreign passport indicating temporary evidence of LPR status. 50 Evidence of the family relationship. The requirements are set forth in the regulations and the instructions to the form. 51 Primary evidence includes birth certificates, marriage certificates, and adoption decrees. If a marriage certificate is required and either of the parties has been married previously, include documents showing termination of the prior marriage. 52 In all spousal petitions, the petitioner should submit one or more of the following documents to establish good-faith marriage: joint ownership of real property or joint tenancy; joint ownership of personal property or commingling of financial resources; birth certificates of children born from the relationship; or affidavits from persons who have known the married couple who can attest that it was bona fide. 53 Other evidence could include photos or other proof of the wedding, insurance forms naming the other spouse as a beneficiary, and joint tax returns. 44 INA 204(a)(2)(A). 45 INA 204(g), 245(e)(3). 46 Adjudicator s Field Manual (AFM) ch CFR 204.1(g)(1) CFR 204.1(g)(1)(i) (vi). 49 AFM ch. 21.2(a)(9)(C) CFR 204.1(g)(1)(vii) CFR CFR 204.2(a)(2) CFR 204.2(a)(1); Instructions for I-130, Petition for Alien Relative. 25

9 For mother-child relationships, primary evidence includes the child s birth certificate bearing the name of the mother. For father-child relationships, it includes the child s birth certificate bearing the father s and name, as well as a marriage certificate showing the father s marriage to the child s mother. If the child was born out of wedlock, it must include evidence of legitimation. This should be either a formal court decree of legitimation or proof of a subsequent marriage between the child s father and mother before the child turned 18. In the alternative, the petitioning father may submit evidence of a bona fide parent-child relationship (e.g., custody, provision of support) before the child turned 21. Primary evidence of a sibling relationship includes the petitioner s and the beneficiary s birth certificates showing at least one parent in common. It may also have to include marriage certificates of the parent(s), prior divorce decrees, and evidence of legitimation for children born out of wedlock. Other Forms and Documents Included in the I-130 Application Packet The complete I-130 packet is made up of the following documents: Form I-130, Petition for Alien Relative Form G-325A, the biographic information form (not required for persons under 14) for both the petitioner and the beneficiary in a spousal petition Photos of the petitioner and the beneficiary in a spousal petition 54 Evidence of petitioner s citizenship (birth certificate, naturalization certificate, certificate of citizenship, U.S. passport, Form FS-240) or LPR status (I-551 card) Evidence of family relationship between petitioner and beneficiary (marriage certificate, birth certificate) Evidence of termination of prior marriages (if appropriate) Evidence of the bona fides of the marriage (if a spousal petition) Where to File If the petitioner is in the United States, he or she will file the petition and supporting documents with either the Chicago or the Phoenix Lockbox facility. Those residing in the following states or territories will file the petition at USCIS, Attn: I-130, P.O. Box 21700, Phoenix, AZ 85036: Alaska, American Samoa, Arizona, California, Colorado, Florida, Guam, Hawaii, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Northern Mariana Islands, Oklahoma, Oregon, Puerto Rico, South Dakota, Texas, Utah, Virgin Islands, Washington, Wyoming. For those filing by Express mail or courier delivery, send the petition to USCIS, Attn: I-130, 1820 E. Skyharbor Circle S, Suite 100, Phoenix, AZ CFR 204.2(a)(2). 26

10 Those residing in the following states or territories will file the petition at USCIS, P.O. Box , Chicago, IL : Alabama, Arkansas, Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Vermont, Virginia, Washington, D.C., West Virginia, Wisconsin. For those filing by Express mail or courier delivery, send the petition to USCIS, Attn: I-130, 131 South Dearborn-3 rd Floor, Chicago, IL The I-130 will be feed-in and routed to the appropriate service center, which is dependent on the petitioner s address. If the petitioner is filing the I-130 concurrently with an application for adjustment of status, file the whole packet at the following address: USCIS, P.O. Box , Chicago, IL For those filing the I-130 and I-485 by Express mail or courier delivery, send the packet to USCIS, FBAS, 131 S. Dearborn, 3 rd Floor, Chicago, IL Petitioners filing from overseas in countries with a USCIS office may send their I- 130 forms to the Chicago Lockbox, or they may file them at the USCIS office having jurisdiction over the area where they live. If there is no USCIS overseas office in that country, petitioners residing abroad will file the petition at the Chicago Lockbox facility. After approval of the I-130, the petition will be retained by USCIS if the parties indicated that they will be adjusting status. If the I-130 indicates that the parties will be consular processing, the petition will be forwarded to the National Visa Center (NVC) in Portsmouth, NH, which will in turn transmit it to the appropriate consulate when the priority date is current. The role of the NVC is described in greater detail in chapter 4. Filing Fee The filing fee for the I-130 is currently $420. Second Step: USCIS Marriage Interview In marriage-based cases the USCIS may schedule an interview with the parties, or conduct an independent investigation, to determine the validity of the marriage. 55 Generally, USCIS will conduct an interview of the parties to the I-130 petition only when it suspects fraud. Situations that may raise USCIS s suspicions include: vast age differences between the parties; indications that they are not currently residing together or never have resided together; the fact that the couple do not speak a common language; and the fact that they have filed for legal separation. 56 There is no re CFR 103.2(b)(7). 56 AFM ch. 21.3(a)(2)(H). 27

11 quirement that the marriage be viable at the time one spouse is seeking to immigrate the other, provided the marriage has not been terminated. 57 But evidence that the marriage is not viable puts a greater burden on the parties to establish that it was valid at the time it was entered into. Whenever USCIS schedules a marriage interview, the parties should be prepared to establish the validity of the marriage through documentary evidence, photos, their testimony, and the testimony or affidavits of friends and relatives. The following are some of the documents that should be submitted when the validity of the marriage is questioned: wedding photos and other records of the ceremony; photos, letters, telephone bills, airline tickets, and other evidence of the couple s relationship during courtship; lease or other records showing the couple lived together; insurance policies; employment records showing marital status and any employment-related benefits paid; joint credit cards, bank accounts, or other contractual relationships; joint tax returns; and birth certificates of children born of the relationship. At the interview, expect the examiner to inquire into the following areas, either with the couple together or separate: (1) Ancient history place and date of birth of spouse; names and addresses of siblings and parents; basic biographical information, such as spouse s residences during the last 10 years, etc. (2) Relationship history where did the couple first meet, first go out together, go on trips together, ask the other to get married, get dressed before the marriage ceremony, get married, etc. (3) Recent history what was the last movie they saw together; who usually leaves first in the morning; who usually comes home first in the evening; what side of the bed does the spouse prefer; discuss everything they did together on a certain day, etc. (4) Situational history describe current living quarters: number of radios or TVs, location of clocks, color of bathroom rug or shower curtain, type of oven or microwave, etc. (5) Private history scars or birth marks, favorite perfume, nicknames, spouse s favorite color or food, spouse s best friend, etc. Third Step: Adjustment of Status or Consular Processing The next step is to determine whether the parties are eligible to adjust status or intend to consular process. The requirements for adjustment of status are set forth in detail in chapter 3. The following are the basic requirements for adjustment of status: 1. Immediate relative relationship: 57 Matter of Boromand, 17 I&N Dec. 450, 454 (BIA 1980). 28

12 Inspected and admitted or paroled into the United States, 58 or Eligible for adjustment pursuant to INA 245(i), which requires that an I-130 petition, I-360 petition, or labor certification have been filed on behalf of the beneficiary on or before April 30, 2001, 59 and Not inadmissible. 2. Preference category: Inspected and admitted or paroled into the United States, 60 and maintained lawful nonimmigrant status since admission, including no unlawful employment, or Eligible under 245(i), and visa currently available, 61 and Not inadmissible. All those who are not eligible to adjust must consular process. The procedure and requirements for consular processing are set forth in chapter 4. Fourth Step: Inspection and Admission by CBP For persons who have consular processed and received an immigrant visa from the U.S. consulate, the last step is presenting themselves for inspection and admission before a U.S. Customs and Border Protection (CBP) or USCIS official at the border. 62 The visa is valid for a six-month period, after which it expires. 63 Even though the Department of State (DOS) has considered the applicant eligible for admission as an immigrant, CBP also has the right to make a separate determination. 64 If CBP believes the person to be ineligible for an immigrant visa or inadmissible, the agency may deny admission. 65 The immigrant must be prepared to establish to the satisfaction of the inspector that he or she is not inadmissible. This means that at the time of inspection the inspector may inquire as to eligibility for the immigrant visa (e.g., legitimacy of marriage, proper familial relationship), as well as admissibility, taking into account all the grounds of inadmissibility. The alien must remain eligible for admission as an immigrant at the time of presentation to the agent. In other words, an alien immigrating based on marriage to a citizen or LPR must be married to that person at the time 58 INA 245(a). 59 INA 245(i)(1). 60 INA 245(a) CFR 245.2(a)(5)(ii). 62 INA 221(a)(2). 63 INA 221(c), 22 CFR CFR 235.1(f). 65 INA 221(h). 29

13 of inspection, an alien immigrating as an unmarried son or daughter must remain unmarried, and an alien immigrating as a child still must meet that definition. Because the agent may inquire as to whether any of the grounds of inadmissibility apply, the alien must be admissible both at the time of the consular interview and at the time of inspection at the border. Aliens who have committed certain crimes or certain acts after the granting of the visa may be denied admission. Petition Revocation Intending immigrants may lose their ability to immigrate under an approved I-130 petition if circumstances occur that trigger automatic petition revocation. These circumstances include: notice of the withdrawal of the petition by the petitioner death of the beneficiary termination of the marriage in an immediate relative or second preference spouse petition case marriage of a second preference petition beneficiary (child, son, or daughter of a lawful permanent resident) loss of the petitioner s permanent residency in family-based cases death of the petitioner, unless the USCIS in its discretion determines that for humanitarian reasons revocation would be inappropriate 66 If the USC spouse dies, the noncitizen spouse may qualify for immigration benefits as a widow(er). 67 Eligibility for that status and the procedures for seeking permanent resident status are explained in chapter 5. Other surviving family members may qualify for immigration benefits after the petitioner or principal beneficiary has died. 68 The beneficiaries would have to establish that they were residing in the United States at the time of the death and are continuing to reside here, and would need to obtain the assistance of a substitute sponsor. Eligibility for this benefit is set forth in chapter 1. In cases involving the death of the petitioner where the beneficiary cannot establish residency in the United States, the regulations provide an exception where the beneficiary establishes that it would be inappropriate to revoke the application based on humanitarian factors. 69 This relief is available when the petitioner died after the petition was approved, and it requires a formal motion or request to reinstate the petition. The agency has indicated that the following factors would be considered in 66 8 CFR 205.1(a)(3)(i). 67 INA 204.2(b)(2)(A)(i). 68 INA 204(l); USCIS Memo, Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act (Dec. 16, 2010) CFR 205.1(a)(3)(i)(C)(2). 30

14 satisfying that test: impact of revocation on the family unit in the United States, the beneficiary s poor health or advanced age, the beneficiary s long residence in the United States, absence of any ties to the beneficiary s country of origin, and any undue delay by USCIS or the consulate in processing the petition or application. 70 USCIS internal documents provide some examples of when reinstatement should be granted: (1) where the original petitioner died prior to the person receiving an immigrant visa or adjusting status, especially in preference cases if there was a long wait, 71 or (2) if there is one family member (out of many) who has been unable to immigrate because of the petitioner s death. 72 In order to reinstate the I-130, the beneficiary must file a formal motion or request and attach supporting documentation. Submit the motion to reinstate to the INS or USCIS office that approved the petition. There is no fee for this type of motion. The motion must include the following: death certificate of the petitioner I-797, Notice of Approval of I-130 declaration from the beneficiary detailing the humanitarian factors in the case substitute I-864 affidavit of support from family member (see below) 73 proof of substitute sponsor s relationship to the beneficiary Additional documentation establishing the humanitarian factors might include any of the following: proof of the bona fides of the relationship to the deceased petitioner proof of the beneficiary s long residence in the United States proof of relationship to other family members and their immigration/citizenship status proof of any health-related problems of the beneficiary or the beneficiary s home country proof of attachment to the local community and/or involvement in civic organizations declarations from friends, religious leaders, employers, and others, describing the beneficiary s good moral character and benefit to the community After implementation of INA 204(l), applicants for humanitarian reinstatement will largely consist of those who have never resided in the United States, and they 70 AFM ch (h)(1)(c). 71 PowerPoint slide handouts prepared in 2003 by the Department of Homeland Security, USCIS Office of Adjudications, for training presentations in New York, Miami, Chicago, Los Angeles, and San Francisco on Grounds of Inadmissibility, Affidavit of Support, 212(h) Criminal Waivers, and Unlawful Presence. 72 AFM ch. 21.2(g)(1)(C). 73 INA 213A(f)(5). 31

15 have difficulty establishing the necessary humanitarian factors. In those cases, the presence of other family members in the United States who were able to immigrate or adjust should be stressed. A sample motion to reinstate and an exhibit list of sample supporting documents is included as appendix 2. If USCIS reinstates the I-130, it will forward the approved petition either to the office adjudicating the adjustment of status application or to the NVC or appropriate DOS post. One of the more important changes to immigration law in 1996 was the added burden of fulfilling the affidavit of support requirements, discussed in depth in chapter 8. Every I-130 petitioner is also a sponsor who must complete a Form I Between 1999 and 2002, the agency interpreted the statute literally and required every family-based petitioner to file an affidavit of support. Therefore, even when the petitioner had died and the agency had reinstated the I-130 based on humanitarian factors, it refused to waive the affidavit of support requirement or allow the filing of a substitute affidavit from a joint sponsor. DOS used to deny immigrant visas based on the same reasoning. In early 2002, President George W. Bush signed into law the Family Sponsor Immigration Act of This law remedied this problem for cases in which the I-130 petition was approved and then is reinstated after the petitioner has died. The intending immigrant is now allowed to submit a substitute affidavit of support from another close relative. 76 The list of family members of the intending immigrant who can act as alternative sponsors in that situation includes the following: spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years old), son, daughter, son-inlaw, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, and legal guardian. Substitute sponsors must meet the other requirements of INA 213A(f). In other words, they must be at least 18 years of age, a USC or national or LPR, domiciled in the United States, and demonstrate the means to maintain an annual income of at least 125 percent of the poverty line. To satisfy the last requirement, they may use the income of other household members, as well as any assets that can be converted into cash within one year. If the substitute sponsor is still unable to satisfy the income requirement, he or she may submit an I-864 from a joint sponsor. 77 Alternatively, the affidavit of support requirements are satisfied if the intending immigrant qualifies to file a Form I-864W in lieu of an I-864 (40 qualifying quarters or derived citizenship under INA 320). 74 INA 213A(a)(1). 75 Family Sponsor Immigration Act of 2002, Pub. L. No , 116 Stat INA 213A(f)(5)(B) CFR 213a.2(c)(2)(iii)(D). 32

16 Immigrating Adopted Children under the Hague Convention Rules Overview Immigrating a child adopted on or after April 1, 2008 requires compliance with the Intercountry Adoption Act of 2000, 78 which the United States enacted to comply with its obligations under the Hague Convention. 79 U.S. citizens seeking to adopt and immigrate a child from one of the convention member countries must satisfy certain requirements. 80 The Hague Convention rules were intended to provide more centralization and uniformity in the international adoption process. They have now brought more harmony between different country s laws, more transparency, more communication among agencies established in the two countries, and more assurance that the adoption and emigration is in the best interests of the child. But at the same time, these rules have brought significant changes in the way practitioners approached this area of law. The first step in advising a client who is considering adopting a non-citizen child is understanding the Hague rules and determining if they apply. If the rules apply, the adoptive parent does not have a choice of proceeding with a family or an orphan petition the client must follow the Hague procedures. To emphasize the importance of this initial determination, it is helpful to know the major differences between the Hague rules and the other two procedures. The following is a summary: Only U.S. citizens not LPRs may adopt and immigrate children subject to the Hague rules 81 The Department of State (DOS) coordinates with the equivalent Central Authority or designee in the child s home country and this foreign entity is heavily involved in the process 82 Adoptions cannot serve as the basis for the child s immigration unless they follow certain prescribed steps and sequences The citizen parents are prohibited from contacting the birth parents unless they fall within narrow exceptions 83 The adopted child must be under 16 when the decree is finalized or the I- 800 is filed 84 ; there is no exception for children between ages 16 and Pub. L. No , 114 Stat Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, May 29, 1993, S. Treaty Doc (1998), 32 I.L.M For in-depth guidance on international adoption issues, see The International Adoption Sourcebook (AILA 2008), 80 INA 101(b)(1)(G); 8 CFR 300, et seq.; 22 CFR CFR CFR CFR (b)(2). 84 INA 101(b)(1)(G); 8 CFR (c)(2). 33

17 whose siblings have been adopted while under 16, and The definition of adoptable child is broader than orphan and includes those whose (1) single birth parent has relinquished control, (2) two living birth parents are incapable of providing care and have released the child for adoption, or (3) unmarried birth father, who can qualify as a sole parent, releases the child for adoption after the birth mother has abandoned the child. 85 Hague Convention rules apply to children who are habitual residents of one of the approximately 80 countries that have signed on to the international treaty. 86 For a current list of these signatories, go to the DOS website at Some of the countries that have not ratified the Convention include Kazakhstan, Russia, Guatemala, Ethiopia, and South Korea. Some of the ones that have include China, India, Mexico, and the Philippines. The Hague rules apply only to adoptions between two Hague countries. This could be significant for children born in one foreign country but who have been residing in another country, including the United States. If the foreign Central Authority determines that the child is now habitually residing in the United States, for example, the Hague rules would not apply. But children are generally considered to be habitual residents of the country of their citizenship unless their status in the third country is sufficiently stable. In the same respect, make sure the prospective adoptive parents are habitual residents of a Hague country, e.g., residing in the United States or residing temporarily abroad with the intention of returning before the child turns 18. Hague rules do not apply to adoptions finalized before April 1, Adoptions finalized on or after that date may possibly be reopened and granted nunc pro tunc to an earlier date. They do not apply to cases where the prospective adoptive parents filed either the Form I-600 or I-600A before April 1, They also do not apply to cases where the adoptive parent has resided for at least two years in the legal and physical custody of the adopted child in the child s foreign country before filing a family petition. Procedure for Applying Assuming the Hague rules apply, the following steps must be adhered to in this precise order. First, the prospective adoptive parent(s) obtains an approved home study from an accredited provider, licensed in the adoptive parents state, and authorized to conduct such studies. 87 The adoptive parent(s) then files Form I-800A, 85 INA 101(b)(1)(G) CFR (b) CFR Part

18 Application for Determination of Suitability to Adopt a Child from a Convention Country, with the USCIS, along with the home study. The USCIS may need to communicate with the designated adoption service provider. After approval of the I-800A and home study, the USCIS forwards them to the adoption service provider and the National Visa Center, which in turn forwards them to the Central Authority of the designated foreign country. That Central Authority then identifies a child and refers him or her to the prospective parent(s) along with a report on his or her medical and social background. If the family accepts the referral, they file Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, with either the USCIS. The USCIS then provisionally approves the petition and forwards it to the appropriate U.S. consulate. The consular officer screens the child for admissibility and annotates the visa application with the child s ability to immigrate following adoption. The officer also transmits the Article Five Letter to the Central Authority, which basically affirms that the adoptive parents may proceed with the adoption. The family then completes the adoption or guardianship process and submits the official decree to the consulate, which approves the I-800 and issues the immigrant visa (IH-3 or IH-4). Beginning on September 25, 2008, the USCIS expanded its direct mail program to include the forms I-800A and I-800. Applicants must now submit them to the USCIS Chicago Lockbox facility for initial processing using the following address: USCIS, P.O. Box , Chicago, IL These forms will then be forwarded to the National Benefits Center in Lee s Summit, MO, which has assumed processing of these petitions. 35