An expert panel of Harvard alumni talk immigration policy and answer questions about the future of US immigration.
By Katrina Mendoza
The I-130 Petition for Alien Relative is the first step in sponsoring an eligible family member to immigrate to the United States with Lawful Permanent Residence or a "green card." A common misconception is that once the United States and Immigration Services approves an I-130 Petition, it remains valid indefinitely or at least throughout the duration of the Petitioner and Beneficiary’s relationship. However, there are some circumstances in which an I-130 Petition may be cancelled or revoked.
Immigrant Visa Availability & the Visa Bulletin
Once an I-130 Petition is approved, many relatives must wait until a visa becomes available before they can proceed to the next step of their application. You can check the availability of an immigrant visa through the Visa Bulletin, published monthly by the US State Department. Once a visa is available, the family member may apply to adjust their status (within the United States) or apply for an immigrant visa through consular processing (at the U.S. Embassy or Consulate in their country abroad). For immediate relatives of US citizens such as spouses, minor children, or parents, a visa is always immediately available.
Revocation of I-130 Petition if No Application within One Year
If the foreign national relative is applying for an immigrant visa abroad, otherwise known as Consular Processing, an approved I-130 Petition can be revoked if an Embassy or Consulate terminates their registration. Section 203(g) of the Immigration and Nationality Act provides that:
“The Secretary of State shall terminate the registration of any alien who fails to apply for an immigrant visa within one year following notification to the alien of the availability of such visa, but the Secretary shall reinstate the registration of any such alien who establishes within 2 years following the date of notification of the availability of such visa that such failure to apply was due to circumstances beyond the alien's control.”
This means that the foreign national relative must begin applying for an immigrant visa within one year of being notified that a visa is available. If the applicant fails to do so, INA § 203(g) allows the Embassy or Consulate to reinstate an applicant’s registration within two years of being notified of an available visa. The applicant must demonstrate that their failure to apply for an immigrant visa within the one-year window was due to circumstances beyond their control.
Overcoming Revocation if Circumstances Beyond Your Control
What circumstances might the Embassy or Consulate consider? Circumstances beyond the applicant’s control will generally be factors that arise out of the applicant’s normal circumstances, such as a medical emergency or natural disaster. It is likely that pandemic-related reasons would be considered as well. However, if you fail to apply for a visa because you didn’t update your address, your request for reinstatement would likely be denied. If the Embassy or Consulate decides to reinstate the application and petition, the one-year window to apply will begin again.
If the applicant cannot show a valid reason for their failure to continue their immigrant application once a visa became available or the Embassy or Consulate decides not to reinstate their application, the I-130 Petition will also subsequently be revoked. In order for the foreign national relative to pursue their Lawful Permanent Residency again, the sponsoring relative must refile the I-130 Petition and start the process over—including paying fees again and waiting the long processing times for USCIS to adjudicate the petition.
Other Reasons for Revocation
In addition to revocation during Consular Processing, an I-130 Petition may be revoked for other reasons, such as withdrawal by the Petitioner, the death of the Beneficiary, divorce (for marriage-based petitions, with some exceptions), and more.
How We Can Help
If you filed an I-130 Petition or had an I-130 Petition filed for you a while ago that was shelved or left dormant, and you are unsure whether it is still valid, contact World One Law Group to schedule a consultation to determine what options are available to you.
Public Charge Rule Causes Changes in Form I-485 for Permanent Residency Application
by Andrea Lee
The new rule regarding the public charge ground of inadmissibility went into effect on December 23, 2022. As a result, Form I-485, Application to Register Permanent Residence or Adjust Status, was updated with additional questions that have proven confusing for some. This article will hopefully clarify some of those doubts.
Some background on the public charge rule. Though the final rule was recently published, this ground of inadmissibility has been in effect since 1999. As an adjustment of status applicant, one cannot be or likely to become a public charge. What this final rule does is more clearly define “public charge”:
“Someone who is primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.”
8 CFR Section 212.21(a).
“Cash assistance” includes only the following programs:
The additional questions on Form I-485 were added to try to make this issue clearer for officers adjudicating a case.
The adjustment form’s question 61 in Part 8 asks whether the applicant is subject to the public charge grounds of inadmissibility. There are certain applicants who will not be subject to this ground of inadmissibility. A full list of exemptions can be found in 8 CFR section 212.23(a). The most common individuals who are exempt include:
Question 62 in Part 8 of the Form I-485 asks for the applicant’s household size. The applicant must include him or herself then add any of the following individuals they reside with:
Question 63 asks about the applicant’s annual household income. The applicant should include any income (taxable and non-taxable) from the applicant and household members counted in question 62 above.
Question 64 asks for the applicant’s total value of assets. Though the I-485 form instructions don’t list specific examples, we can gain some insight from the instructions for Form I-864, used to show the petitioner’s ability to sponsor the foreign national. In those instructions, “assets” include savings accounts, stocks, bonds, real estate, or other assets that are readily convertible to cash within one year. Other assets that should be considered are cash in a checking account, automobiles, and other items that are valuable.
Question 65 asks for the applicant’s household liabilities. Again, there is no specific definition but one should consider large and regular liabilities such as a mortgage, car loans, school tuition, or child support.
Question 66 asks for the highest level of education and lists standard U.S. education milestones. If the applicant completed school outside of the U.S., they should select the option closest to the U.S. education equivalent.
Question 67 asks for certifications and licenses. Applicants should include any formal certificates received, such as workforce skills training, licenses for specific occupations, foreign language skills, etc.
All in all, the “new” public charge rule and the additions to Form I-485 were put in place to help officers determine whether an applicant is or will likely become primarily dependent on public cash assistance to maintain their income in the United States. There is a more holistic approach in this determination, looking at education and skills, total household income and liabilities, and other factors that could influence this decision. Hopefully this will help clear the air for those applying for the adjustment of status.
NEW Visa Revalidation Process WILL allow Visa Stamp renewals without leaving the United States
An official of the U.S. State Department official said in an interview that the agency is creating a pilot program to allow certain foreign nationals to revalidate their visa stamps within the United States, without having to travel abroad and apply at a U.S. embassy or consulate abroad.
This pilot program is scheduled to be operational later in 2023. Initially, the visa revalidation program will likely be limited to certain H1B and L1 visa holders. The State Department may impose other limits on eligibility. This stateside revalidation program could take some time before it is fully available.
Backlog of Visa Stamping Appointments Cause Problems with Travel
The COVID-19 pandemic and travel restrictions have caused major visa application backlogs at U.S. embassies and consulates. The U.S. embassies in India and China, for example, were scheduling appointments months and even years in advance, causing problems for people with more immediate needs to travel. U.S. immigration policy requires most foreign nationals to have a valid visa stamp in their passport to return to the United States. The only way to renew those visa stamps were at a U.S. embassy or consulate abroad. The lack of visa appointments cause serious constraints on foreign nationals who needed to travel internationally.
Previous Visa Revalidation Program
The State Department used to allow foreign nationals to do "visa revalidation" while in the United States. Foreign workers would send their passports to the U.S. State Department, with evidence of their valid nonimmigrant status in the United States. The government would review the documents, process those visa stamps, and return the passports to the foreign national with a new visa stamp that allowed foreign travel.
In this previous version of visa revalidation in the United States, applicants had to hold valid E, H, L, O, P, or certain other nonimmigrant statuses. The individual had to have a visa previously issued at a U.S. consulate and been admitted to the United States in the same status. Visas could be revalidated in the United States in the period beginning 60 days before and up to one year after expiration.
This program was cancelled in the summer of 2004. The program was terminated because the State Department did not have a process for collecting applicant biometrics such as fingerprints and photographs. Congress had required biometrics in laws passed after the September 11, 2001 terror attacks.
What Visa Revalidation Means for Foreign Workers in the United States
Immigration advocates have been urging the State Department to once again allow stateside visa revalidation. Allowing stateside visa revalidation could reduce the exceptionally long visa application backlogs caused by the COVID-19 pandemic. This visa revalidation program is designed to reduce the impact of these embassy backlogs on foreign nationals needing to travel abroad for work, family, and vacation.
We don't know many details about the State Department's pilot program for stateside visa revalidation. But this announcement is good news for foreign nationals who are frustrated by long waits to renew their nonimmigrant visa stamps at U.S. embassies and consulates. Visa revalidation could allow people to travel internationally without the frustration and anxiety caused by a lack of visa appointments abroad. Instead of traveling abroad and hoping that the embassy issues a visa stamp, a foreign worker can get their visa stamp issued while in the United States. This will allow for international travel without worrying about the lack of visa appointments or delays caused by administrative processing.
Next Steps for Visa Revalidation Pilot Program
It may take some time for the State Department to fully implement this policy. The pilot program will likely have limitations on who can participate. It will likely take months or even years for a stateside revalidation program to be operational.
World One Law Group will be watching for more news on the visa revalidation program. We will provide updates as we get more news!
This blog is published by the attorneys of World One Law Group, an immigration law firm in Bellevue, Washington. World One specializes in employment and business immigration, family-based immigration, naturalization, as well as asylum, DACA, VAWA, and U-Visa cases.