USCIS Updates Policy Manual for Family-Based Immigrant Petitions

The U.S. Citizenship and Immigration Services (USCIS) Policy Manual was recently updated, providing guidance related to family-based petitions. This update explains and clarifies eligibility criteria, filing procedures, interview scheduling, and other issues. Most notable is the USCIS decision to issue notices to appear (NTAs) – that is, to place petitioners in removal proceedings – for family-based petitions where beneficiaries are otherwise removable.

When DOS Can Accept I-130 Immigrant Petition Filed Abroad

If certain conditions are met, U.S. citizens sponsoring an immediate relative (i.e., spouse, parent, or child) may file the petition for alien relative (form I-130) with a U.S. consular post abroad, as opposed to filing it with the USCIS. This may be allowed based on exceptional circumstances, including military or medical emergencies, threats to personal safety, a beneficiary being close to aging out, a petitioner recently naturalizing after being scheduled for an immigrant visa interview, adoption of a child, or short notice of position relocation.

Filing with a consular post may also be allowed based on a temporary blanket authorization. This may occur due to prolonged or severe civil strife or natural disaster, or for U.S. citizen military service members stationed at military bases abroad, or U.S. government employees assigned to a U.S. mission abroad or at the American Institute of Taiwan.

Multiple Petitions

If a petitioner files more than one petition on behalf of the same beneficiary for the same classification and both are approved, the USCIS regards the subsequent petition as reaffirmation of the first petition. The original priority date is retained unless the original petition was terminated, had its approval revoked, or visa issued based on the original petition. If this occurs, a new priority date would be assigned to the subsequent filing/s.

If a petitioner files multiple I-130 petitions at the same time for different beneficiaries, the officer should consider all the petitions simultaneously, if possible, to make every effort to keep family cases together; however each petition must be adjudicated on its own merits.

Interviews

The USCIS can interview any petitioner or beneficiary, together or separately at any stage of the adjudication. The USCIS requires an interview in any of the following situations:

• The USCIS believes evidence is missing or a marriage is not bona fide.
• There are material inconsistencies or derogatory information.
• The petitioner and/or beneficiary of a marriage-based case was under 16 at the time of the wedding.
• The petitioner is at least 10 years older than the beneficiary spouse and the beneficiary was 16 or 17 at the time of the wedding.
• The petition lacks reliable evidence.
• The petition requires testimony to resolve discrepancies.
• The petition is for a spouse where the petitioner previously filed a spousal petition for a different beneficiary.
• The petition is for a spouse where either party had a prior spousal petition denied, revoked, terminated, or withdrawn.
• The petition was filed by a lawful permanent resident (i.e., green card holder) who gained permanent residence through marriage less than 5 years prior to filing for the current beneficiary.
• The petition is for a spouse where marriage occurred while the beneficiary was in removal proceedings.
• The petition is for a spouse where, after an initial interview, it is determined that the bona fides of the marriage are in question.

Beneficiaries who are Removable

If the USCIS determines that a beneficiary is removable and amendable to removal, they can issue an NTA. Petitioners and beneficiaries should understand that filing a family-based petition provides no immigration status and does not bar removal.

Conclusion

Given the current immigration climate, it is recommended that an immigration attorney be consulted prior to filing an I-130 petition. The attorneys at the Murthy Law Firm are available to discuss strategy to help avoid potential problems.

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