International I-130 Petitions / Changes of USCIS Services due to Coronavirus

As of February 1st, 2020, the Department of State (DOS) will handle certain international I-130 applications while USCIS will handle all domestic cases.

Overseas active duty service members are to file their I-130 with the local DOS office. Also, certain non-military candidates can file I-130 locally with DOS through consular processing .

The general rule is that DOS will handle Form I-130 locally if the application falls under blanket criteria determined by USCIS. Blanket authorization is in place for U.S. service members stationed abroad. Temporary blanket authorization can also be implemented in situations of civil strife and severe natural disaster. DOS also has discretion to accept a U.S. citizen petitioner's I-130 based on "exceptional circumstance". Overseas petitioners not meeting these criteria are required to file online or domestically through mailing the Dallas Lockbox Facility. 

The reason for this delegation of I-130 processing is to improve efficiency. USCIS states that DOS has a wider presence internationally, meaning it has the facilities to process Form I-130 locally. USCIS should have less administrative burden with the help of the State Department, hopefully speeding up domestic I-130 processing times.

Coronavirus

Due to the impact of the Coronavirus, the U.S Embassy and Consulates in China are temporarily closed to the public. All services and interviews are suspended until further notice. The USCIS field offices in Beijing and Guangzhou are also closed. All appointments have been or will be rescheduled for a later date.  The I-130 petitions can still be filed with the USCIS Lockbox as described above in the interim. 

Further, if individual applicants or petitioners are impacted by the Coronavirus, they may request for rescheduling of any USCIS appointments without penalty following the instructions in the appointment notices.

Immigration Filing Fee Increases Proposed - Naturalization Fee Upped to $1,170

The Department of Homeland Security (DHS) has proposed fee changes for almost every immigration application, and a majority of them are increases. The most substantial increase is the naturalization filing fee, which almost doubles from $640 to $1,170.

DHS states that if USCIS continues to operate at current fee levels, it would experience an average annual shortfall of $1,262.3 million. 

Some filing fee calculations will change, namely those for Form I-485 Application to Adjust Status. Currently, the filing fee for forms I-765 and I-131 are waived if they are filed together with an I-485 application, with only a one-time filing fee of $1,225. DHS is proposing to remove the bundle fee waiver and applicants must pay for the filing fees separately for each and every I-765 or I-131 application that they file.  While the application fee for I-485 is slightly reduced to $1120, the I-765  and I-131 filing fees will increase to $490 and $585 respectively.

Another I-485 fee change is that children under 14 years-old would no longer have a reduced fee.

Form I-129 Petition for Nonimmigrant Worker would also undergo substantial changes with this proposal. DHS has created new I-129 petitions, each for a different worker classification and each with its own fee. The table below shows this information. Every worker category would see a filing fee increase from the current I-129 filing fee of $460.

Filing fees for many applications would increase, some by a huge margin. The following table illustrates these proposed changes for some of the most common applications:

Proposed Filing Fee Changes

  

	Immigration benefit request	Current fee ($)	New fee ($)
N-400	Naturalization	640	1,170
N-600	Application for Certificate of Citizenship	1,170	1,015
N-600K	Application for Citizenship and Issuance of Certificate Under Section 322	1,170	960
I-90	Replace Permanent Residence Card	455	415
I-102	Replacement/Initial Nonimmigrant Arrival-Departure Document	445	490
I-212	Permission to Reapply for Admission into the U.S. After Deportation or Removal	930	1,040
I-290B	Notice of Appeal or Motion	675	705
I-131	Travel Document	575	585
I-765	Employment Authorization	410	490
I-485, I-765, & I-131	Application to Register Permanent Residency or Adjust Status, Employment Authorization, & Travel Document	1,225	2,195
I-539	Extend/Change Nonimmigrant Status	370	400
I-751	Remove Conditions on Residence	595	760
I-129H1	I-129 H-1B - Named Beneficiaries	460	560
I-129H2A	I-129 H-2A - Named Beneficiaries	460	860
	I-129 H-2A - Unnamed Beneficiaries	460	425
I-129H2B	I-129 H-2B - Named Beneficiaries	460	725
	I-129 H-2B - Unnamed Beneficiaries	460	395
I-129L	Petition for L Nonimmigrant Worker	460	815
I-129O	Petition for O Nonimmigrant Worker	460	715
I-129CW, I129E&TN, I129MISC	CNMI-Only Nonimmigrant Transitional Worker;  Application for Nonimmigrant Worker: E and TN Classification; Petition for Nonimmigrant Worker: H-3, P, Q, or R Classification.	460	705
I-129F	Petition for Alien Fiancé(e)	535	520
I-130	Petition for Alien Relative	535	555
I-140	Immigrant Petition for Alien Worker	700	545
I-601	Waiver of Ground of Excludability	930	985
I-601A	Application for Provisional Unlawful Presence Waiver	630	960
I-526	Immigrant Petition by Alien Entrepreneur	3,675	4,015
I-824	Application for Action on an Approved Application or Petition	465	500
I-829	Petition by Entrepreneur to Remove Conditions on Permanent Resident Status	3,750	3,900
-	Biometrics Services	85	30

Note that biometrics services fees would reduce from $85 to $30. I-140 petitions fees would reduce from $700 to $545. 

DHS will accept comments from the public for 30 days after publishing the proposal in the Federal Register. A final rule incorporating this feedback will release afterwards.  To avoid paying the proposed increased fees, applicants should file their petitions as soon as possible. For example, if you are eligible for naturalization, do not wait to submit your N-400 application.


1/27/2020 Update: The DHS is reopening the comment period for the proposed rule published on  11/14/2019.  The comment period has been extended to February 10, 2020.

Wonder why your immigration applications are delayed?

Some immigration applicants may find that their case is taking an abnormally long time to process. They wait for weeks or months longer than expected and the case does not move forward. The processing times are advancing very slowly. It is as if the application is stuck in limbo. What on earth could be going on behind the scenes?

It is no secret that USCIS has a huge backlog of cases.  The net backlog for FY 2018 is estimated to be 2,415,573 cases, bringing the accumulated gross backlog to 5,691,839 cases.  This compares to  543,859 case net backlog and 3,290,668 case gross backlog in FY 2014. This backlog is immense and continues to accumulate at an astounding rate.

In February, Congress sent an inquiry to USCIS requesting explanations and statistics on the backlog. USCIS' response gives us some insight on the matter.

The five-year "completions per hour" statistics USCIS provides tells us a lot about the situation. For almost every prominent application category, the case completions per hour decreases with each year from FY 2014 to FY 2018. Form I-129 Petition for a Nonimmigrant Worker (used for H-1B, O-1, L-1, R-1, etc.) went from 1.1 completions per hour in 2014 to 0.64 in 2018. I-130 Petition for Alien Relative dropped from 1.7 to 1, and employment-based I-485 (green card) went from 0.95 to 0.57.

USCIS attributes much of its delays to policy changes requiring more strict vetting procedures. Their response cites the President's executive order, which suspended refugee travel for 120 days and created more vetting procedures for USCIS to follow. Other policy changes that prolonged processing times include the in-person interview for employment-based green card applicants and for relatives of refugees and asylees applying for a green card. Applications such as I-129 employment petitions are also affected by the policy changes, which stresses strict evaluations even for extension requests for previously approved petitions.

USCIS also states that there is a lack of facilities and trained staff.

The good news is that some strategies targeting inefficiencies have produced results. The "Last In, First Out" policy for I-589 affirmative asylum applications (an application with an especially large backlog) has reduced the backlog. An online process to adjudicate Form I-90 Application to Replace Permanent Resident Card has resulted in a reported 75% drop in the I-90 backlog as of September 2018. It is hoped that the upcoming I-129 H-1B CAP electronic registration process (which is expected to be rolled out in April 2020) would also speed up the average processing time for H-1B petitions.  

Too Young to Marry?

Does love conquer all, including age differences?  Can a person be too young to get married?  USCIS is grappling with this issue in its new guidance regarding marriage petitions that involve minors.

A major problem with the marriage visa system is forced marriage and fraudulent petitions. Typically, a young underage citizen is forced into marriage with a foreign national, who can then attain a visa through a I-130 petition. An I-130 petition is used to sponsor family members for immigration.  If the parties are both present in the U.S., the I-130 is typically filed with the I-485 Adjustment of Status (green card application). There is currently no statutory limit on the couple's ages and no limit on the number of available marriage visas. The immigration officials are always concerned that minors and the marriage petition system are exploited for visas.

What mechanisms are currently in place to combat this? USCIS uses an electronic flagging system to detect minor spouses and fiancés in marriage petitions. Once flagged, the petition is sent to another unit to verify the age and relationship on the petition before processing can proceed. 

The new guidance adds more concrete rules for officers to reference in the Adjudicator's Field Manual (AFM). The marriage must be (1) valid where it is celebrated, (2) valid in the state where the couple resides or will reside, (3) in accordance with the state of residence's public policy, (4) bona fide, and (5) done with the minor's full and informed consent. Officers have also been instructed to pay special attention to marriage petitions involving underage people.  

Other factors USCIS will take into consideration are if the marriage took place in a state or foreign country that allows underage marriage under certain circumstances. These circumstances can include  a judicial order, emancipated minors, pregnancy of the minor, and having parental consent.

Some underage marriages are legitimate, but it is difficult to tell through forms alone. Minors can be groomed or coerced into consenting to marriage, something not always reflected on applications. Immigration officers will use personal interviews and in-depth questioning to determine whether the marriage is legitimate and informed consent is present. Sometimes, officers may even visit the marital address to investigate the couple's habits and lifestyle.  But the addition of stricter guidelines should not otherwise affect truthful and genuine marriages. 

Changes to Family Immigration Form I-130

The USCIS increased the filing fees for many immigration petitions on December 26, 2016.  At the same time, the agency also published new editions of many immigration forms including some commonly used forms such as the N-400 Application for Naturalization, the I-129 Petition for Nonimmigrant Workers, and also the I-130 Petition for Alien Relative.  Regarding the I-130 Petition for Alien Relative, a new I-130A form has also been implemented.

Under the current immigration policy, a U.S. citizen or a lawful permanent resident may file petitions for their family members to immigrate to the United States.  For a U.S. citizen, he may petition for his parents, spouse, children (married or unmarried), and also his brothers and sisters for U.S. immigration.  For a lawful permanent resident, she may only petition for her spouse, minor children, and unmarried adult sons and daughters to come to the U.S.  President Trump announced his plans to change the current immigration system in his recent speech to Congress.  However, the current policy will continue to be effective unless and until his proposal is adopted by Congress and signed into law. 

The current edition of the Form I-130 is 02/27/17.  It has been revised to capture also some biographical information of the petitioner including employment history, residential addresses, etc. 

Starting 04/28/17, USCIS will only accept the 02/27/17 edition of the Form I-130. Until then, the 12/23/16 edition will still be accepted by USCIS.   The filing fee has been increased to $535 as of 12/26/17 and must be paid now in all I-130 petitions.  

Another major change with the I-130 petition is the implementation of the Form I-130A Supplemental Information for Spouse Beneficiary. For U.S. petitioners who are using the 02/27/17 edition of Form I-130 to file for their spouses, they must also submit a Form I-130A.  

The Form I-130A is a supplemental form that captures the biographical information of the spouse beneficiary such as his employment history, parents' information, residential addresses, etc.  If the spouse beneficiary resides in overseas countries, he must still complete the form but doesn't have to sign it.

For U.S. petitioners who are using the 12/23/16 edition of Form I-130 to file for their spouses, they must still submit two G-325A Biographic Information forms, one for the petitioner and one for the spouse.  The new I-130 and I-130A forms are intended to replace the current G-325A forms required for I-130 spousal petitions.  It should be noted that the new Form I-130A is only needed when one is filing for his/her spouse.  It is not required for other types of family petitions.

Marraige Petition May Continue After Death of Citizen Spouse and Remarriage

Surviving spouses of U.S. citizens who have remarried may continue their adjustment of status (green card) applications, according to a new policy memo issued by the USCIS. 

When a foreign national marries a U.S. citizen, the foreign spouse may apply for lawful permanent status (or green card) as an "immediate relative". The second sentence of the statue defining "immediate relative" addresses the situation when the citizen spouse dies before the foreign spouse obtains her green card.  In order for the widow to continue being classified as immediate relative, the marriage must have lasted at least two years before the death of the citizen spouse and widow must remain unmarried. INA 201(b)(2)(A)(i).  Under the previous interpretation of the law by the USCIS, a surviving spouse's eligibility to apply for a green card ends if the surviving spouse remarries.

In 2010 Congress passed INA 204(l) to allow surviving spouses of U.S. citizens to continue their marriage petitions in spite of the fact that the underlying marriage was shorter than two years. Subsequently, USCIS started to approve surviving spouses petitions even if the marriage lasted less than two years before the citizen spouse passed away. However, USCIS would still enforce the remarriage bar and deny petitions filed by applicants who had remarried.

In 2014, the U.S. Court of Appeals for the Eleventh Circuit held that this USCIS interpretation of the law is incorrect. The 11th Circuit decided that widows in the above situation who have remarried may still continue their original I-130 petition under INA 204(l). Williams v. DHS Secretary, 741 F.3d 1228 (11th Cir. 2014).   In so deciding, the Court held that remarriage bar contained in the second sentence of INA 201(b)(2)(A)(i) only applies to self-petitions by widows. 

In a recent policy memo dated November 18, 2015, USCIS confirmed that the agency has decided to follow the decision in Williams nationwide.   Accordingly, if the surviving spouse of a U.S. citizen has remarried and therefore no longer qualifies as an immediate relative under the second sentence in INA 201(b)(2)(A)(i), the widow may still apply for adjustment of status under INA 204(l).  

Specifically, the memo states that "USCIS would still have discretion to approve the Form I-130 (or to reinstate a prior approval) under INA 204(l), notwithstanding the widow's remarriage."  It should be noted that immigration officers now have the authority to approve the original Form I-130s but they are not required to do so.

The memo also emphasizes that under this interpretation, the two advantages associated with the Form I-360 self petition filed by a surviving spouse will no longer be available.  First, unless the U.S. citizen spouse had filed petitions for the widow spouse’s child(ren), the child(ren) cannot “accompany or follow to join” the widow parent.   Second, the widow will have to submit an Affidavit of Support Form I-864 from a substitute sponsor, unless specifically exempt by regulation.

Finally, this new policy under Williams only applies to surviving spouses of U.S. citizens and their eligible children.   It does not cover petitions filed by lawful permanent residents. 

Adoptions by U.S. permanent residents not governed by Hague Adoption Convention

Many thousands of American parents adopt children from overseas countries every year.  Yet, overseas adoption can be a very tricky and complicated process.  In recent years, the new legal requirements imposed by the Hague Adoption Convention have made international adoption an even more daunting task for U.S. citizen parents. However, if one of the two adopting parents is a lawful permanent resident while the other one is an American citizen, the Hague Convention requirements do not apply to them, according to a recent immigration appeal board decision on January 9, 2015.

Hague Convention

The Hague Adoption Convention became effective in the U.S. in 2008.  The Hague Convention is an international agreement created mainly to protect the interests of children and the adoptive parents against illegal activities such as fraud and child trafficking.  The convention introduced additional requirements in the adoption process including the use of different forms (I-800, I-800A) and visa categories(IH-3, IH-4), stricter requirements for the adoption agencies, mandatory parental education, additional home study requirements, etc.  On the other hand, Convention adoptions also confer additional benefits to the family. For examples, the adopted child may automatically acquire United States citizenship; and the adoptive parent does not need to satisfy the 2-year residency and legal custody requirements under the regular adoption rule. 

American couple's Mexican adoption denied

The couple in the case adopted a new-born baby from Mexico in December 2009.   The wife, a U.S. legal resident, file an immigration visa petition (Form I-130) with the California Service Center (CSC) of the USCIS.   The petition was denied by CSC Director on December 23, 2013.  The Service Center took the position that the couple's adoption was subject to the legal requirements of the Hague Convention.  Since the couple did not follow the Convention requirements when adopting their child, the visa petition was denied.  In denying the petition, the Service Center Director explained that because the petitioner's husband was a U.S. citizen, and they were adopting the child together, the adoption should therefore be subject to the Convention requirements.

BIA reverses the denial

The couple appealed the denial to the Board of Immigration Appeals (BIA).  Upon a review of the relevant regulations, the BIA noted that the regulations govern international adoptions by United States citizens only. Neither the language of the Convention nor the regulations specifically require a lawful permanent resident parent to pursue a Convention adoption.  Consequently, the BIA held that in petitions filed by a USC parent and a LPR parent, the adoptive parents may choose to pursue either a Convention adoption or the regular route of filing an I-130 visa petition. The Board therefore remanded the case to California Service Center for further actions. Although this decision may not be the final word on this important issue, adoptive parents can at least make arguments based on this case if they choose not to adopt under the Convention. 

Update on I-130 adjudications

Regarding the delay in I-130 adjudications, which discussed recently, USCIS provided an update during a meeting between USCIS headquarters and AILA in April 2014.  Specifically, as a result of the transfer of stand-alone I-130 cases from the National Benefits Center to the Nebraska, Texas, and California Service Centers, "USCIS expects the processing of these Form I-130s to be increasingly timely in the ensuing weeks, culminating in the return to an average processing time of five months. "

This is indeed good news for U.S. citizen petitioners.  It should be noted that the delay only affects stand-alone I-130 petitions, most of which are aimed for overseas consular processing.  I-130 petitions that are filed with I-485 applications for adjustment of status in general still enjoy speedy adjudications.

Delay in immediate relative I-130 processing

U.S. citizens who filed immigrant visa petitions on behalf of their family members may have noticed the current delays in the processing of these I-130 petitions.  It is now taking about eight to ten months to process these petitions, and the delay has caused problems for many immigrant families.  Before the backlog of cases is cleared, it is very important for applicants to understand their options and plan their cases carefully in order to alleviate the impact caused by the current delay.

U.S. Citizens' right to petition for close family members
One of the many benefits of being a U.S. citizen is the ability to petition for one's immediate relatives to immigrate to the United States.  Immediate relatives (IR) include one's parents, spouses and minor children. Under the current immigration policy, immediate relatives are exempt from the annual visa quota and can immigrate to the United States as soon as their petitions are approved by the U.S. government. Hence, the processing time of their cases has a direct impact on how soon they can immigrate to the United States.

Delays in immediate relative I-130 petitions
The first step of the immigration process is to file an immigrant visa petition (Form I-130).  The U.S. Citizenship and Immigration Services (USCIS), a branch of the Department of Homeland Security, is charged with the responsibility of adjudicating all immigrant visa petitions.  It has been the practice of the USCIS to process IR petitions expeditiously as they are not subject to the visa caps.  Consequently, the processing times of IR petitions have traditionally been shorter than those in other visa preference categories (such as those filed by permanent residents).  However, since early 2013, the processing of the IR petitions has slowed down significantly.  As of October 31, 2013, USCIS reports that it was only processing IR petitions filed in February 2013. The agency is aware of the issue and is taking measures to remedy the situation.  For example, the agency has been transferring cases between service centers to fully utilize the agency resources.

Know one's options and plan carefully
In light of the current processing delays, intending immigrants their petitioners should plan their cases carefully in order to avoid lengthy delay of their cases.  First of all, they should know their options.  For example, rather than filing an immigrant visa petition for a foreigner, a U.S. citizen may use a fiancee visa petition instead. Currently, the K-1 fiancee petitions (I-129F) are taking about five months to process, which is a lot faster than an I-130 petition.  In order to apply for a fiancee visa, the parties must not be married.  Couples who can delay their marriage should consider filing for the fiancee visa classification.

If a couple is already married and has a pending I-130 petition, they can file an K-3 visa petition to allow the foreign spouse to first come to the United States while waiting for the processing of the I-130 petition. As of October 31, 2013, the processing time of the K-3 (I-129F) petition is about five months.  However, it is not unusual for USCIS to adjudicate both the K-3 and I-130 petition simultaneously.  Hence, delays in I-130 processing could also slow down adjudication of the K-3 petition.

Upon approval of the I-130 petition, the case is forwarded to the National Visa Center (NVC) for further processing and preparation for the consular interview.  Nowadays, NVC requires substantial amount of documents and information from the parties.  To speed up the immigration process, the parties should plan a head start with NVC processing.  For instance, the parties should have their original or certified documents ready including birth certificates, marriage certificate, divorce judgments, etc.  The beneficiary can also obtain the police clearances in advance but should be mindful of their effective dates.  The petitioner should also have their financial documents ready early on, including their federal tax returns, employment verification documents, proof of assets, etc.

Conclusion
USCIS has announced that it intends to bring the processing time back down to five months - the agency's target processing time for immediate relative petitions.  Before this goal is achieved, it is important for immigrant families to carefully consider their options and plan their actions accordingly.  For cases with unusual delays or special circumstances, the parties may contact Congressional members and USCIS Obudsman for assistance.  As a last resort, the parties may also file a Writ of Mandamus with the federal court to request that their I-130 petition be adjudicated.

USCIS to review denied family petitions filed by same-sex binational couples

USCIS will act on certain family based immigrant petitions (I-130) based on the recent Supreme Court decision on DOMA. In his keynote speech today at the 2013 AILA annual conference, USCIS Director Mayorkas stated that his agency has kept a list of all denied I-130 petitions filed by same-sex binational couples since Feb. 2011. These cases will be reviewed based on the recent Supreme Court's decision

December 2012 Visa Bulletin: Family categories advance, Employment 5th China may no longer be current

In December, most family sponsored visa categories advance nicely. For examples, Family 1^st move forward by one month for China, India and the “Other Countries”, and by three months for the Philippines to October 8, 1997.  Family 2A for China, India, Philippines and “Other Countries”; and Family 2B for China, India “Other Countries” all advance five weeks. 

On the Employment side, all EB-2 categories are current except India, which remains unchanged, and China, which moves forward by seven weeks. What is significant is that the State Department predicts that EB-5 China may no longer be current during the second half of the fiscal year.  Demand for investment visas from Chinese nationals has been very high in recent years.  Please see the tables below for details:

Family	Other Countries	CHINA	INDIA	MEXICO	PHILIPPINES
F1	01DEC05	01DEC05	01DEC05	01JUL93	08OCT97
F2A	22AUG10	22AUG10	22AUG10	01AUG10	22AUG10
F2B	15NOV04	15NOV04	15NOV04	01NOV92	22MAR02
F3	08JUN02	08JUN02	08JUN02	01MAR93	01AUG92
F4	01APR01	01APR01	01APR01	22JUL96	22MAR89

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).

2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.

2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.

3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)

4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

Employment	Other Countries	CHINA	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	22OCT07	01SEP04	C	C
3rd	22DEC06	01JUL06	01NOV02	22DEC06	15AUG06
Other Workers	22DEC06	01JUL03	01NOV02	22DEC06	15AUG06
4th	C	C	C	C	C
5th	C	C	C	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: "Special Immigrants" (Religious & others)

5th: Employment Creation (Investors)