I-130S AND I-129FS Presented by Holly Pai and Micaela Guthrie OVERVIEW: WHO MAY FILE? United States Citizen (USC): Spouse (including same sex relationships) Unmarried children under 21 years of age Unmarried sons or daughters (21 or older) Married sons or daughters After turning 21: Mother or Father Siblings March 15-16, 2018 Page 1 of 12
OVERVIEW: WHO MAY FILE? Lawful Permanent Resident (LPR) Spouse (including same sex relationships) Unmarried children under 21 years of age Unmarried son or daughter (Note: if married at any time, the petition is automatically denied or revoked. Divorce does not cure a marriage) IMMEDIATE RELATIVE OR PREFERENCE CATEGORY Immediate Relative: Spouse of a USC Child of a USC (includes step-children if marriage creating relationship occurred prior to child reaching 18 and adopted children if adopted while under 16) Parent of a USC No Annual Limit No derivatives Exceptions for unauthorized employment and not maintaining lawful NIV status Preference Categories 1 st Unmarried sons and daughters of USCs 2A Spouses and minor children of LPRs 2B Unmarried sons and daughters of LPRs 3 rd Married sons and daughters of USCs 4 th Siblings of USCs Numeric and per country limitations Allows for derivatives March 15-16, 2018 Page 2 of 12
FIANCÉ(E) VISA USCs only may apply for fiancé(e) Must have physically met within the last two years (certain exceptions) Must marry within 90 days of the fiancé(e) s entry into the US May only apply for adjustment of status based on that marriage Derivative children may enter on K-2 visas Some limitations K3/K-4 VISA Filed by USCs after having filed an I-130 for a spouse who is abroad (need receipt number to file) Historically used when I-130s took much longer to adjudicate and designed to allow those spouses ability to enter the US while the I-130 is pending (need now?) and then AOS in US May apply for employment authorization after admission while I-130 still pending No filing fee for K-3 status! Dependent children may apply for a K4 visa Timing issue once the I-130 reaches the Department of State (i.e. approved and sent to NVC), then no longer qualify for a K-3/K-4 If child intends to immigrate, must have an I-130 filed on his/her behalf March 15-16, 2018 Page 3 of 12
BONA FIDE RELATIONSHIP For relationship s other than spousal, birth certificates usually suffice May need DNA testing to establish father/child relationship if child born out of wedlock and father s name is not on birth certificate For spousal relationship, must submit marriage certificate and other evidence Proof of dissolution of previous marriages Co-mingled financial assets Photos together Communication (if spouse is abroad) Practice Pointer: Make sure to have packet to submit at interview as well ADJUSTMENT OF STATUS OR CONSULAR PROCESSING? Which route will your client take? Adjustment of status if an IR, was the beneficiary inspected and admitted? Is there any 245(i) protection? Great especially for preference category beneficiaries Consular Processing March 15-16, 2018 Page 4 of 12
VISA BULLETIN FAMILY-SPONSORED PREFERENCES First: (F1) Unmarried Sons and Daughters of U.S. Citizens: Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: A. (F2A) Spouses and Children of Permanent Residents: B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: Third: (F3) Married Sons and Daughters of U.S. Citizens: Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: PROCESSING PETITIONS Usually Filed at the Chicago or Phoenix Lockbox Stand-Alone petitions are filed at whichever lockbox has jurisdiction I-130s submitted concurrently with I-485s are submitted to the Chicago Lockbox Always double-check USCIS.gov prior to filing. Filing address Form Edition Filing fee New Instructions Always double-check petition Signatures, correct relationships, supplemental forms (I-130A) Signatures and photos not needed for spouses abroad March 15-16, 2018 Page 5 of 12
PROCESSING PETITIONS, CONT. How long will it take?? Check USCIS.GOV for processing times Immediate relatives are currently at 8 months!! Preference Category Petitions will not be adjudicated immediately will wait until priority date is closer to current. Priority Dates will generally be the receipt date but only appears on approval notice. Expedited Processing: humanitarian reasons, severe financial loss, emergency situation, etc. Expedite requests can be made via the Customer Service Center Rarely granted WILL THERE BE AN INTERVIEW? If stand-alone I-130 is submitted with sufficient evidence of bona fides, petition may be approved without interview. Additional evidence is usually requested by RFE I-130 for Beneficiary in removal proceedings, interview is likely Be sure to submit Bona-fide marital exemption request under INA 204(g). Ideally at time of filing. Stokes Interview I-130 for Beneficiary with outstanding order of removal Advise of Risk! If interview is scheduled, consider preparing a Stay of Removal Request or MTR, if possible, to have ready. If I-130 is submitted with a one-step AOS, I-130 interview will be conducted at AOS interview. Submitting bona fides with initial filing or at interview? I-129s are adjudicated based on filing documents, no interview March 15-16, 2018 Page 6 of 12
APPROVAL.WHAT S NEXT? Immediate Relative or Current PD NVC packet in one month or NRC for twostep If CP, routed to Consulate If AOS, sent to field office with I-485 for AOS PD not Current NVC or NRC until current Consulate for Interview AOS if 245(i) I-129F NVC welcome letter Consulate for Interview I-130 OR I-129F? COUNSELING BEST OPTIONS Practical Matters Ease of travel to home country of Beneficiary Ease of travel to US by Beneficiary Cultural Norms that may interfere with CP (e.g. samesex marriage, mixed religions) Client Priorities Getting Beneficiary to US as quickly as possible Completing process sooner Beneficiary s ability to work until immigrating March 15-16, 2018 Page 7 of 12
I-130 VS I-129F Benefits of I-130 Beneficiary enters as an immigrant No need for additional filing after entry to US Beneficiary is not as dependent on Petitioner for status Benefits of I-129F o Children of Fiancé(e) able to immigrate without separate petition obeneficiary will be in the US sooner ono need to travel to get married Entire process from filing to LPR is shorter Petition is not re-adjudicated at consulate SCREENING AND INTAKE Be sure to know the immigration history of the spouse, especially if he/she is in the US Previous entries to the US? Look for permanent bar issues Will beneficiary need a 601A waiver or a 601 waiver? Smuggling issues (i.e. brought young children to the US)? Ever applied for a NIV visa before? Ever refused admission to the US? If beneficiary has an A number, call EOIR hotline Consider OBIM/FBI/EOIR background checks OBIM and FBI both require fingerprints March 15-16, 2018 Page 8 of 12
CRIMINAL/IMMIGRATION HISTORY For Beneficiary may trigger grounds of inadmissibility or render him/her permanently ineligible for an IV Disclosure to beneficiary of some of Petitioner s crimes in K-1 petition (DV, rape, homicide, etc.) For Petitioner, remember the Adam Walsh Act U.S. citizen or LPR precluded from filing I- 130 if he/she has been convicted of a specified offense against a minor Requires the Secretary of Homeland Security to determine that the petitioner does not pose a risk to the beneficiary CRIMINAL/IMMIGRATION HISTORY Beneficiary False claims to US citizenship? If worked in US, did he/she complete an I-9? Prior Marriages Able to show dissolution of all prior marriages? Non Immigrant intent issues Any misrepresentation at entry if here on a NIV? What questions, if any, were asked at entry? Underlying NIV application Nonimmigrant intent March 15-16, 2018 Page 9 of 12
MANAGING CLIENTS EXPECTATIONS Understand and explain the timelines For AOS, what is the current processing timeframe for your local office? For CP cases, how long are I-130s taking on average at the service centers? If need a waiver, how long are I-601As taking? I-129F, may be taking less time on average to adjudicate but then need to schedule the K-1 vis appointment Try to understand the process at the consulate where the beneficiary will apply for the visa DOS webpage for consulate specific information AILA The Consular Process Handbook Other practitioners who routinely handle cases there RELATIONSHIP ISSUES Representing two separate entities Important to have clients sign and understand Mutual and Informed Consent Designate in the engagement agreement who will receive the original documents/refund if the relationship dissolves and unable to move forward Be prepared to withdraw as attorney of record from all government entities (USCIS, NVC) and be sure to advise clients in writing March 15-16, 2018 Page 10 of 12
FILING TIPS! Be sure to have the most current version of the form double check USCIS.gov G-325s NO LONGER NEEDED! Provide clients with a copy of filing Double check fees Show name changes with relevant documents (marriage certificates, divorce decrees, etc) If RFE is received, be sure to research primary and secondary evidence acceptable DNA may be used to establish familial relationships testing lab must be certified by the American Association of Blood Banks Checks are converted into electronic funds transfer check itself not returned. Can pull receipt number off the back of check. If filing for a preference category, do not expect a decision immediately. Manage client expectations. Also, ethical obligations regarding filing for heavily backlogged categories. CONSULTATION EXAMPLES Paul, a USC, comes in to talk about options for filing for his Canadian girlfriend, Nicole. Paul often goes up to Canada to see Nicole, and Nicole often travels to Seattle, using her Canadian passport, to visit Paul. They plan to marry soon. Nicole has a good job in Canada as an Engineer. She plans to work as an Engineer in the US, as well. What are the pros and cons of an I-130 vs. I-129F for this couple? March 15-16, 2018 Page 11 of 12
CONSULTATION EXAMPLES, CONT. Maria, a USC, schedules a consultation to discuss the options for her and her fiancé, Mateo, a citizen of Venezuela. Maria and Mateo met about a year ago when Mateo was in the US on vacation. They ve kept in near constant contact since then via WhatsApp and Facebook Messenger. They plan to get married soon and they are exploring their options. Mateo is in school and plans to graduate in about 3 months. What are the pros and cons of an I-130 vs. I-129F for this couple? March 15-16, 2018 Page 12 of 12