Published: September 11, 2013
The following sequence of events may sound familiar. First, the U.S. citizen or lawful permanent resident files an I-130, Alien Relative Petition on behalf of a family member living outside the U.S., or maybe even living in the U.S. – with or without status. The U.S. Department of Homeland Security/Citizenship and Immigration Services (CIS) eventually issues a notice confirming that the petition has been approved and shortly thereafter the National Visa Center forwards a correspondence informing the parties that visas are not available and that no travel plans should be made for the immediate future. And then, after some 5 to 15 years, a large packet of paperwork, including Form I-864 Affidavit of Support and other bio data forms, is forwarded to the parties by the National Visa Center in anticipation of visa availability and preparation for immigrant visa interview scheduling at a U.S. consular post in the alien relative’s home country.
For petitions filed on behalf of spouses or under 21 year old children of a U.S. citizen, or the parents of adult U.S. citizens, those thick National Visa Center packets are forwarded to the parties only weeks after I-130 petition approval, since there is always visa availability in the IR, “Immediate Relative” visa category and the scheduling of immigrant visa interviews at U.S. consular posts in the overseas relative’s home country, take place in a matter of months (approximately 2 to 4 months). Often, however, that overseas relative on whose behalf the I-130 was filed has already made their way to the U.S. one way or another, and are living here (with or without status) by the time that thick NVC packet is issued. And to the astonishment of many clients who have appeared in my office, the alien relative may very well qualify to undergo all further processing in the U.S. before the CIS, via “adjustment of status” proceedings, with no need to travel back overseas to appear at a U.S. consular post. If that is the case, then a very different approach to responding to those thick National Visa Center document requests must be taken.
Too often, I have seen individuals blindly comply with those NVC requests, including the payment of hundreds of dollars of unnecessary immigrant visa and affidavit of support processing fees to the U.S. Department of State. If it is the case that the petitioned relative is in the U.S. and is eligible for “adjustment of status” processing at a local CIS office, then the parties should respond by NOT PAYING and instead advise the NVC that the petitioned relative’s intention to pursue further processing in the U.S. Again, the petitioned relative must be eligible for adjustment of status in the U.S. for this directive to apply.
Once it is determined that the petitioned relative is clearly eligible to proceed with adjustment of status in the U.S., then all further paperwork and processing fees will instead be forwarded to their local CIS office (such as CIS Chicago) at the appropriate time and not the U.S. Department of State. The reason: the National Visa Center is merely a conduit for future overseas consular post processing of immigrant visas, and is not in any way involved with permanent residence processing of aliens currently in the U.S. who are eligible to “adjust their status” before the CIS and without having to return to a U.S. consular post in their home country.
Once the U.S. Department of State receives such notification, the petitioned relative’s file will be noted accordingly, and no further documentation requests will be issued. And for the parties at issue, unnecessary paperwork and processing fee requirements are avoided.
Lastly, in making important decisions regarding your own or your family member’s rights under governing immigration laws, it is imperative that the decisions be informed ones. Therefore, it is advisable that the effected parties obtain as much information and feedback as possible from ALL sources, including the government as well as at least one reputable, licensed immigration attorney.
PUBLISHED September 11, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois