Delays in I-130 Processing Due to Visa Unavailability
Posted Jul 23, 2004
The U.S. Citizenship and Immigration Services (USCIS) announced on July 15, 2004, that it will only process an I-130, Petition for Alien Relative, as an immigrant visa number becomes available for that type of petition. Given the extended backlogs in visa availability for family-based cases, this means that, with the exception of cases fitting within the immediate relative category, most I-130s will not be processed for years.
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Preserve the Priority Date
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Many MurthyDotCom and MurthyBulletin readers may interpret this information as bad news, with their I-130s now taking even longer to process. It may prompt some to question the wisdom of filing the I-130 petition, particularly if the sponsoring relative is eligible for naturalization at some later time. In most situations, however, the petitioner should file as early as possible to obtain an earlier priority date and, essentially, lock in a place in the visa number waiting line. The priority date is generally the day that the USCIS initially receives the I-130 petition.
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The priority date system, for those who do not know, is the means by which the U.S. issues a limited number of visas in each family priority category each year. In order to obtain legal status in the U.S. or apply for the immigrant visa at the U.S. consulate abroad, there must be a visa number available. Eligibility is determined by the priority date assigned to the particular familial relationship as demonstrated on the I-130 petition. The U.S. Department of State (DOS) issues a monthly visa bulletin with a chart that breaks down the family priority categories and shows visa availability for beneficiaries of I-130s filed before the dates listed in the chart. Visa Date information is available on MurthyDotCom. For additional details on priority dates, see our MurthyDotCom article, Priority Dates: How Do They Work? If a person does not file the I-130, the priority date is not established and the beneficiary is not in line to receive the visa or visa number needed for becoming a lawful permanent resident of the United States.
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Processing Delay Benefits Children
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The USCIS's delay in processing I-130s is good news for children who may need to use the Child Status Protection Act (CSPA) to be included in their parents' cases as derivative beneficiaries. As many MurthyDotCom and MurthyBulletin readers know, a child may be included as his/her parent's derivative to obtain lawful permanent resident status until the child turns 21 years of age, unless the child is protected under the CSPA. The formula to determine an I-130 derivative child's age is the age of the child on the day that the visa number becomes available minus the amount of time that the I-130 is pending at the USCIS. Therefore, the longer the I-130 petition is pending with the USCIS, the better the chance that the child will be able to obtain permanent residence based on the fact that the child is under age 21 for CSPA purposes. The USCIS's new policy in delaying the processing of the I-130 petition should help many I-130 derivative children who are currently under 21 years of age as long as any such children do not get married before their parents become U.S. lawful permanent residents. In addition, such children must file the DS-230 Part I, the I-824, or the I-485, within a year after the priority date becomes available or current. Children have a better chance of enjoying the benefits available under the CSPA when the USCIS does not process I-130 petitions promptly.
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Slower Processing Harms Certain Cases
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On the other side of the coin, this delay in processing I-130 petitions may not be helpful for those cases in which the petitioning family member dies before the case is approved. The general rule for I-130 petitions is that, if the petitioning relative dies, that petition can no longer confer any immigration benefits to family members. There is an exception to this general rule for cases that should be allowed to continue for humanitarian reasons. This humanitarian exception only applies, however, if the death occurs after the I-130 is approved. The long delays in approving I-130 petitions can have dire consequences in these situations for any eligible family members.
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Additionally, priority dates sometimes move forward quickly and later retrogress, or go backward. That is, a date that is current one day may not remain current the next month or several months or years later. Priority dates are based upon an estimate of demand for immigrant visa numbers. If, for some reason, there is an unexpected demand in a particular category, then the immigrant visa numbers in that category could retrogress. Thus, any delay in processing the cases once the priority dates become current can further delay a case if the priority dates retrogress. A family member cannot file the I-485 application to adjust status if the priority date becomes current for a short time and then retrogresses, but the USCIS has not yet approved the I-130 for that date.
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Improperly Filed Cases Harmed by Delay
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Sometimes cases are filed for relatives who are not eligible under law to take advantage of the I-130 process. Generally, such cases tend to be filed pro se, without the assistance of attorneys. Examples of this would be cousins, nieces, aunts and other, more distant relatives. These cases should be rejected outright rather than waiting for years for a review. People with these types of cases may wrongly believe that they are protected by the filing and able to confer certain immigration benefits to their relatives. Other cases are filed for potentially qualifying relatives, but without sufficient proof of the relationship. There are sometimes issues about the validity or existence of birth certificates, adoption decrees, and other important qualifying documents. It would be best for petitioners and beneficiaries to know of these problems sooner, rather than years later. For example, it may become increasingly difficult to obtain certain affidavits to verify a birth or marriage if an older relative passes away while the I-130 petition remains pending with the USCIS.
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USCIS Position on I-130 Processing Delays
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The USCIS states that this policy of not adjudicating the I-130 petition until the priority date is approaching will not cause any delay in the granting of benefits, because no benefits can be received until the priority date is current. The USCIS Notice also states that the cases will be adjudicated before the priority date becomes current or before visa availability. This is particularly important for beneficiaries who are abroad. For those individuals, their cases cannot go through the necessary steps for obtaining an immigrant visa through consular processing until the I-130 petition has been approved. Therefore, it is necessary for the USCIS to act upon these cases sufficiently in advance of the priority date becoming current, so that the rest of the process can occur within a reasonable period after the priority date becomes current.
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Conclusion
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This procedure of delaying I-130 processing when the priority date is not current, has both positive and negative aspects to it. We hope that the policy will allow some additional time for the adjudicators to rule on I-130s when the priority date is already current or to catch up with other types of backlogged cases.
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We understand that the USCIS has to prioritize its work. Even prior to the July 15, 2004 Notice, the I-130 petition adjudication priority took into consideration the availability of priority dates in the particular category. When the USCIS is experiencing substantial backlogs in cases that can benefit people immediately, it is logical to have cases wait if they can only provide a future benefit.
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