OVERVIEW: WHO MAY FILE? - 01... · Holly Pai and Micaela Guthrie OVERVIEW: WHO MAY FILE? United States Citizen (USC): Spouse (including same sex relationships) Unmarried children

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 ageUnmarried sons or daughters (21 or older)Married sons or daughtersAfter turning 21:Mother or Father Siblings

2018 NW Regional Immigration Law ConferenceBasics Track, Session 8

I-130 & I-129F

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 ageUnmarried 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 1st Unmarried sons and daughters of USCs

2A Spouses and minor children of LPRs

2B Unmarried sons and daughters of LPRs

3rd Married sons and daughters of USCs

4th Siblings of USCs

Numeric and per country limitationsAllows for derivatives


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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


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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 marriagesCo-mingled financial assets Photos togetherCommunication (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


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VISA BULLETINFAMILY-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


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PROCESSING PETITIONS, CONT.

How long will it take??

Check USCIS.GOV for processing timesImmediate 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 CenterRarely 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


I-130 & I-129F

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APPROVAL….WHAT’S NEXT?Immediate Relative or Current PD

NVC packet in one month or NRC for two-

step

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 BeneficiaryCultural Norms that may interfere with CP (e.g. same-

sex marriage, mixed religions)Client PrioritiesGetting Beneficiary to US as quickly as possibleCompleting process soonerBeneficiary’s ability to work until immigrating


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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

Entire process – from filing to LPR is shorter

Petition is not re-adjudicated at consulate

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

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


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CRIMINAL/IMMIGRATION HISTORY

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

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.)

CRIMINAL/IMMIGRATION HISTORY

Beneficiary

False claims to US citizenship? If worked in US, did he/she complete an I-9?Prior MarriagesAble 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


I-130 & I-129F

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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 appointmentTry to understand the process at the consulate where the beneficiary will apply for the visa

DOS webpage for consulate specific informationAILA – 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


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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?


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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?


I-130 & I-129F

March 15-16, 2018 Page 12 of 12

Documents

OVERVIEW: WHO MAY FILE? - 01... · Holly Pai and Micaela Guthrie OVERVIEW: WHO MAY FILE? United States Citizen (USC): Spouse (including same sex relationships) Unmarried children