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.
0 Comments
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. By Katrina Mendoza For the last few years, the adjudication of I-751 Petitions to Remove Conditions on Permanent Residence by USCIS has been significantly backlogged. The global pandemic has only exacerbated these delays, leaving hundreds of thousands of conditional permanent residents with their statutes pending for years. Currently, around eighty percent of I-751 petitions are being completed within thirty-one months, a drastic increase from processing times pre-pandemic. In an effort to reduce this backlog and push for a more efficient immigration system overall, USCIS recently updated the interview waiver criteria for family-based immigrants seeking to remove the conditions on their permanent resident status. These new criteria will hopefully allow for more waivers to be granted and for I-751 petitions to be decided more quickly. Who does the new I751 Petition policy impact? Foreign nationals are granted conditional permanent residency if their green card application is based on a marriage to a U.S. citizen or permanent resident if they have been married for less than two years at the time the green card is approved. While a green card is usually valid for ten years, a conditional green card is valid for only two years. A conditional permanent resident must file an I-751 petition to request the removal of the conditions on their residency within 90 days of their permanent resident card expiring. The conditional permanent resident is typically required to appear for an interview before the final adjudication of the petition. While a USCIS officer has the discretion to waive an I-751 interview, prior USCIS policy limited the circumstances where on officer could waive the interview. For example, the USCIS policy would not allow interview waivers for any conditional permanent residents that obtained status through consular processing, rather than adjusting status from within the United States. USCIS’s updated policy restores the authority of USCIS officers to use their independent judgement to waive an interview when adjudicating I-751 petitions, regardless of whether the petitioner obtained their status through consular processing or by adjusting status inside the United States. What is the interview waiver criteria? The new policy guidance states that USCIS officers may consider waiving an interview if:
Hopefully, these policy changes are the beginnings of more changes of policy and staffing allocations within USCIS that will reduce case backlogs and improve processes. For conditional permanent residents who are preparing to start this daunting process or who have been waiting in limbo, this new I-751 interview waiver policy means that there is at least one less barrier ahead. Questions?
Our team at World One Law Group consists of attorneys who specialize in family-based immigration matters and regularly assist clients with their I-751 Petitions to Remove Conditions on Residence. If you have questions about your immigration situation and would like to schedule a consultation, please email info@world1law.com or call our office at 425-250-8110. We would be happy to meet with you. For more information and updates on U.S. immigration news, please visit our website at www.world1law.com. World one urges congress to vote no on speaker ryan and rep. goodlatte's immigration bills6/21/2018 U.S. House of Representatives Set to Vote Today![]() World One Law Group has contacted members of the U.S. House of Representatives, urging them to oppose Speaker Ryan’s “Border Security and Immigration Reform Act of 2018” and Representative Goodlatte’s “Securing America’s Future Act of 2018” (H.R. 4760). Both bills hold Dreamers hostage in return for provisions that would upend our immigration system and betray our values. Speaker Ryan’s “Border Security and Immigration Reform Act of 2018” pairs Deferred Action for Childhood Arrivals (DACA) provisions with severe cuts to legal immigration, policies that undermine vital protections for vulnerable populations, and dramatic increases in funding for immigration enforcement. Among other provisions, the current bill would:
Categories All |
AuthorThis 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. Archives
March 2023
Categories
All
|