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.
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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. 

by Andrea Lee
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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:

• Supplemental Security Income (SSI);
• Temporary Assistance for Needy Families (TANF); and,
• State, Tribal, territorial, or local cash benefit programs for income maintenance.

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:

• Asylees and refugees;
• Cubans applying under the Cuban Adjustment Act;
• VAWA recipients;
• Special Immigrant Juveniles; and,
• T and U visa recipients.

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:

• Spouse;
• Parents;
• Unmarried siblings under the age of 21; and,
• Unmarried children.

The applicant also needs to add any dependents listed on their tax returns.

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.

What is the interview waiver criteria?  
The new policy guidance states that USCIS officers may consider waiving an interview if:  

• The applicant meets the eligibility requirements;  
• The record contains sufficient evidence; and,  
• There is no indication of fraud, misrepresentation, criminal bars, or other facts that may require an interview.  

What does this mean, practically speaking? Conditional permanent residents who do not have a criminal history and who provide sufficient evidence of their good faith marriage may not be required to have an in-person interview with a USCIS officer. If you are a conditional permanent resident preparing to file an I-751 petition with your spouse, you can increase your chances of approval without an interview by providing lots of documents of your bona fide marriage.  
 
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.  

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President Donald Trump issued a proclamation on June 22, 2020 that furthered the Administration’s ongoing efforts to prevent the entry to the United States of foreign workers and their families. Proclamation 10052 prohibits admission by foreign workers abroad who have H1B, H2B, L1, or some J1 visas and their dependents. This proclamation also extends previously imposed limitations (in Proclamation 10014) on issuing visas for permanent residency applicants through their American employers or family members. 
 
Who Is Affected by this Proclamation?
This latest Proclamation is titled “Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak.” The first provision extends the previously announced “suspension” of permanent residency visas for foreign nationals outside the US on April 22 and who did not already have a valid travel document. This proclamation exempted lawful permanent residents, health care professionals or medical researchers working specifically on COVID19, EB5 investors, as well as spouses and minor children of US citizens.
 
The 60 day “suspension” for immigrant visas was extended at least through the end of 2020.

The June Presidential Proclamation also expanded the visa ban to prevent entry to the United States for certain temporary workers and their families. It specifically affects only those who were outside the United States on midnight on June 24, 2020. It also targets those individuals seeking entry on visas including H1B (high skilled workers), H2B (seasonal workers), H4 (dependents of H workers), L1 (multinational managers or specialized knowledge workers), as well as some J1 visa categories (interns, trainees, teachers, camp counselors, au pairs, or summer work travel).
 
This proclamation does not directly impact the work authorization of individuals in those work visas categories who are currently in the United States. People with H, L, or J status who were in the United States can continue to live and work in the United States. However, these individuals may now be unable to travel internationally without jeopardizing their employment or being separated from their families.
This ban on travel would prevent entry to the United States at least through December 31, 2020.
 
Who Is Specifically Exempted from the Travel Ban
Several key groups were exempted from this most recent restriction on entry. Spouses and minor children of US citizens and permanent resident “green card” holders can return to the United States after temporary travel abroad. President Trump also explicitly exempted temporary workers who are “essential to the United States food supply chain” or whose entry would be in the “national interest” as determined the Secretaries of State or Homeland Security. But these policies still put unnecessary obstacles in the way of these critical workers.
 
The policy announcement details some examples of people who may be considered to be in the “national interest.” Some of these exemptions are quite narrow. For example, the policy excluded certain medical workers but only health care professionals caring for a COVID-19 patient, and only if that patient is currently hospitalized. Medical researchers are able to enter the United States, but only if they are directly helping combat COVID-19. If a foreign-born doctor or medical researcher is fighting cancer, diabetes, heart disease, or any number of ailments, that individual is not able to return to their home in America.

Other exemptions are much more vague. The proclamation allows entry of individuals who are “critical to the defense, law enforcement, diplomacy, or national security of the United States.” But only the Secretary of State or Secretary of Homeland Security can determine who meets that standard. Foreign nationals who are “necessary to facilitate the immediate and continued economic recovery of the United States” are also able to get a visa. The proclamation fails to mention whether these critical workers would be able to bring their families to the United States.
 
The Proclamation provides no clear information about how to apply for these exceptions. There is no form to complete and US embassies are closed. This latest policy decision will only add to the existing confusion and delays. 
 
Individuals with Valid Travel Documents May Return; Others Are Stuck
The proclamation allows entry for anyone who had a valid nonimmigrant visa stamp or travel document. If a foreign worker, or their spouse or child, is abroad on the date of the proclamation, they are able to return to the United States only if they already have an unexpired visa stamp in their passports. An amendment to this provision was issued on June 30th to correct an error that would have allowed people to travel on visitor visas. Foreign nationals who have applied for permanent residency and who have current travel authorization (called advance parole) can also return to the United States.
 
The burden of this proclamation will fall primarily on people who live and work in the United States but who were abroad when the announcement was made. Many have been stuck abroad for months because of the abrupt closure of US embassies and consulates. If their H, L, or J visa stamp are now expired, they are unable to return to their home in America at least through December of 2020. 
 
The State Department has also published its “interpretation” that any person who travels overseas and needs a new H1B, H2B, L1, or J1 visa will not be issued one, even if that individual was in the United States on the date of the proclamation. This violates the plain language of the proclamation. This means that tens of thousands of workers in H, L, or J status will not be able to visit sick parents, go to family celebrations, or travel internationally for work without the possibility of being unable to return home.

Economic Impact of this Travel Ban
The unemployment rate in the United States has nearly quadrupled between February and May of 2020, mostly due to the public health crisis. However, this harsh new immigration policy will do little to improve the job prospects of American workers. In fact, this policy is likely to hurt our country’s short- and long-term economic prospects. 
 
Immigrants contribute far more in taxes than they take in public benefits. Foreign workers contribute to American economic activity by paying rent, buying groceries, and purchasing supplies. Almost half of the Fortune 500 companies in the United States have one or more immigrant founders. Preventing needed workers from entering the United States only encourages international companies to outsource their work to other countries.
 
 
Anti-Immigrant Policies Designed to Frustrate Foreign Workers
As many courts have ruled in the last several years, President Trump does not have the power to impose his anti-immigrant policies unilaterally that violates existing US immigration laws. He must follow the strict dictates of the Administrative Procedures Act to change most regulations or force Congress to pass new immigration legislation.
 
No one should have to make the choice between their jobs and their families during these difficult times. This policy does not create jobs for Americans, it only generates more disruption and dislocation during a global pandemic and economic depression.