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|Obtaining U.S. Immigrant Visa for Family Members: Filing the Form I-130 Outside the U.S.
Scenario 1: Jack, who was born in Poland and came to the U.S. as a student, has just become a U.S. Citizen. He would like to bring his parents and little brothers, who are both under 21, to the U.S. so that they can live in the U.S. near him.
1. The Family Based Immigrant Visa process is initiated by the U.S. Citizen or LPR petitioner filing the Form I-130 within the U.S., or in some cases, outside the U.S.
2. To sponsor their spouse, parents and children for a U.S. Green Card, U.S. Citizens living abroad can file the Form I-130 directly at an international USCIS Field Office, or in exceptional situations, directly with the U.S. Embassy or Consulate.
3. Despite living abroad, U.S. Citizen petitioners must be able to show that they have a domicile in the U.S.
Scenario 2: Jack’s old classmate Stephanie is also a U.S. Citizen. She is currently living and working in Italy, where she was born and where her parents live. She is expecting to return home to the U.S. in the next 6-12 months and would like to bring her parents back with her.
Scenario 3: Jack’s other friend, Juan, is also in the process of naturalizing to become a U.S. Citizen. He lives with his wife who is a foreign national. She came to the U.S. as a visitor but overstayed her visa.
Can Jack, Stephanie and Juan help their family members gain permanent residence? What’s the process?
In this article, let us take a look at Stephanie’s situation.
Among the rights and privileges of being a legal permanent resident or U.S. Citizen is the ability to sponsor family members so that they can also become legal permanent residents of the U.S. The Form I-130, Immigrant Petition for Alien Relative is the most often used method by foreign national relatives of U.S. Citizens and Green Card holders to come to the U.S. to live permanently.
The I-130 Process: An Introduction
There are generally 2 steps in the I-130 process. The first step is the Form I-130, which establishes the familial relationship. The second step is for the foreign national relative to apply for an immigrant visa or permanent resident status on the basis of the approved I-130 petition.
In this article, we will focus only on Stephanie’s situation, where Stephanie will be filing the Form I-130 from outside the United States and Stephanie’s parents applying for an immigrant visa at a U.S. Consulate abroad. To read about Jack’s situation, where Jack is filing the Form I-130 from inside the United States and Jack’s parents and brothers applying for an immigrant visa at a U.S. Consulate abroad, please check our previous article.
Step 1: Filing the I-130
- Determine Eligibility
The First step in filing the Form I-130 is to determine the foreign national’s eligibility to have a Form I-130 filed on their behalf. There are two main categories of relatives that are eligible to be beneficiaries of the Form I-130– Immediate Relative of U.S. Citizens and Other Relatives of U.S. Citizens and Relatives of Legal Permanent Residents.
- Immediate Relatives of U.S. Citizen
Immediate relatives of U.S. citizens include their spouse, unmarried children under 21 and parents. Unlike most other green card applicants, these individuals are not subject to any quotas, making them immediately eligible for an immigrant visa number upon approval of the I-130.
Note: In the case of immediate relatives, the U.S. citizen must file a separate I-130 for each relative. This means that if the U.S. citizen has a wife and 2 children abroad, he must file a separate I-130 for each individual. Also, a U.S. citizen would have to file two separate I-130’s for each parent.
- Other Relatives of U.S. Citizens and Relatives of Legal Permanent Residents
Other relatives of U.S. citizens who may be sponsored are unmarried sons and daughters over the age of 21 (F1), married sons and daughters over the age of 21 (F3) and siblings (F4).
The relatives of legal permanent residents who may be sponsored include the spouse and unmarried children under 21 (F2A) and unmarried sons and daughters over the age of 21 (F2B).
Note: In the case of the relatives in this second broad category, accompanying family members (spouse and/or unmarried children under 21) may be able to join the main beneficiary in coming to the U.S. without a separate petition. For example, if a U.S. citizen was filing for his unmarried 24 year old daughter who had a 2 year old son, the child would be able to accompany his mother to the U.S. as a “derivative beneficiary.” This is true for all cases in this second category except the spouse of legal permanent residents.
Unlike the Immediate Relatives of a U.S. Citizen, Other Relatives of U.S. Citizens and Relatives of Legal Permanent Residents categories are subject to statutory quotas and only a certain number of people are eligible for an immigrant visa number each fiscal year under these categories. Each category of individuals described here has its own quota which is then subdivided by country. Because so many people apply in these categories, the quotas get over-used or “over-subscribed,” meaning a backlog results. Individuals in these categories can be waiting for one or two years or up to 20 years to get an immigrant visa, depending on the category they fall into.
- Collect Documents
The main focus of the I-130 is to document the relationship. In most cases, as in the case of parents and children, a birth certificate or secondary evidence of parentage will suffice. The same goes for the siblings of U.S. citizens, who will each have to provide a birth certificate to show that they share at least one parent. In the case of spouses, additional evidence will need to be submitted to document not only that the marriage is legal (i.e., a marriage certificate) but also evidence that the marriage is bona fide (i.e., evidence that the marriage was not entered into for the sole purpose of gaining immigration benefits).
- Filing the Form I-130 From Outside the U.S.
Filing with a USCIS Field Office
|Be ready to prove that you are lawfully residing in the foreign country. If you are living and/or working in the country illegally, USCIS may not accept the petition.
Generally, U.S. citizens and legal permanent residents must file the Form I-130 petition for his/her family member, along with any required and supporting documents and the filing fee, with the USCIS Chicago or Phoenix lockbox, depending on where the U.S. relative resides in the U.S. or abroad. To know more about filing the Form I-130 from inside the United States, please see our previous article.
U.S. citizens and legal permanent residents who are living abroad, however, may also be able to file the I-130 for their relative directly at a USCIS office located abroad instead of a Lockbox in the U.S.
The option of filing the Form I-130 at a USCIS office abroad is only open to those whose relatives have a visa number immediately available (Immediate Relatives of U.S. Citizens) and only where there is an actual USCIS Field Office located in the foreign country of residence. It is important to remember that not every country has a USCIS Field Office located there.
Generally, a U.S. Citizen who is residing in the country (or even just the region or city) where the USCIS Field Office is located may file an I-130 directly at the Field Office. Each USCIS Field Office has its own definition of who is “residing” in that country and has developed rules and criteria for who is eligible to file the I-130 directly. Those in the country or region on a short-term basis or as a visitor must usually file with the USCIS lockbox as above.
In Stephanie’s case, there is a local USCIS Field Office located in Rome, Italy. Since she is currently living and working in Italy legally, she should be allowed to file the I-130 and supporting documents for her parents directly at the USCIS Field Office in Rome.
It is important to check with the USCIS Field Office before starting the process to ascertain the residency requirements, document requirements and submission instructions. Each of the international USCIS Field Offices has developed their own system on how to disseminate information and answer questions regarding direct filing (email, phone or in-person appointment) and how to submit the application (mail or in-person).
Filing with the U.S. Embassy or Consulate – Direct Consular Filing
U.S. citizens and legal permanent residents who live abroad but do not have an International USCIS Field Office near them may still be able to file the Form I-130 outside the U.S. by filing it directly at a U.S. Consulate or U.S. Embassy if there is an ‘exceptional’ situation.
If you believe that your situation merits an exception, you may contact the nearest U.S. embassy or consulate to request an exception and explain your circumstances in detail. You must check with the U.S. Consulate to see if your situation arises to “exceptional.” Each request for an exception will be evaluated individually and must be authorized by the USCIS office that is responsible for that specific U.S. embassy or consulate.
USCIS may authorize adjudication of the case by Consulate or Embassy directly, in situations like:
- A U.S. service member stationed overseas becomes aware of a new deployment or transfer with very little notice.
- A petitioner or beneficiary is facing an urgent medical emergency that requires immediate travel.
- A petitioner or beneficiary is facing an imminent threat to personal safety.
- A beneficiary is within a few months of aging out of eligibility.
- The petitioner and family have traveled for the immigrant visa interview, but the petitioner has naturalized and the family member(s) require a new, stand-alone petition.
- The petitioner adopted a child and there is an imminent need to leave the country.
Note: If a request to file an I-130 petition with a U.S. embassy or consulate is not authorized by USCIS, then the petitioner must file the petition with the USCIS Chicago Lockbox.
Frank, a U.S. citizen, is currently living in New Zealand. He just married a New Zealander, Dave, and they have decided to move to the U.S. Frank was going to file the Form I-130 directly to the USCIS Chicago Lockbox because there is no USCIS Field Office in New Zealand. However, Frank has just found out this his father is extremely ill. He needs to move up his travel plans to return to the U.S. as he needs to go see his father immediately. Dave would like to travel to the U.S. as soon as possible as he has not met Frank’s father. Based on current reports from Dave’s father’s doctors, the situation is dire. Frank knows it would be very risky for Dave to travel with Visa Waiver as he is married to a U.S. Citizen and may be considered to have immigrant intent. What can Frank and Dave do?
Although there is no USCIS Field Office in New Zealand, Frank can contact the U.S. Embassy in Auckland, New Zealand and request that they accept his I-130 for direct consular filing because he is facing an “exceptional” and probable emergency situation. Frank will need to provide documents to show that his father is very ill. If the USCIS office that is responsible for the U.S. Embassy in Auckland decides that the situation is exceptional, the Embassy can accept and process the I-130 petition and immigrant visa for Frank and Dave.
Step 2: The Consular Process and Immigrant Visa Interview
Once the I-130 petition is approved, USCIS sends the petition to the U.S. Consular Section that has jurisdiction over the foreign national relative’s residence. More often than not, the USCIS Field Office is located in the same building or compound as the U.S. Consulate. The U.S. Consulate will generally process the immigrant visa application and have the foreign national relative schedule the consular interview appointment.
The U.S. Consulate will advise the foreign national regarding the payment of visa fees. Generally, the fees must be paid before the interview and the foreign national relative must present proof at the time of the interview that the fee has been paid.
- Immigrant Visa Forms and Required Documents
The foreign national relative and each accompanying family member must fill out Form DS-260, the Immigrant Electronic Visa Application. The DS-260 is filled in and submitted online. Each applicant is also required to submit certain civil documents. These include birth certificates, marriage certificates, divorce certificates, and any other documents depending on the type of relationship the application is based on. Each applicant over the age of 16 must also submit police clearance certificates.
The Civil Documents and the Affidavit of Support must be submitted, in the original, to the NVC. This includes original civil documents.
Note: A select number of U.S. Consulates are currently testing the electronic submission of documents through the NVC. For appointments at these consulates, scanned copies of the civil documents are sent to NVC via email and then original documents are simply brought to the interview. DO NOT SCAN AND EMAIL THE NVC ANY REQUIRED DOCUMENTS UNLESS SPECIFICALLY INSTRUCTED TO DO SO BY THE NVC.
Generally, the Immigrant Visa Forms, as well as the Civil Documents and the Affidavit of Support (see below) must be brought to the U.S. Consulate by the foreign national relative at the time of the interview. This includes original civil documents. Some consulates do require that the documents be submitted before the interview and will provide specific instructions regarding the same.
- Affidavit of Support
In addition to the Immigrant Visa Forms, the U.S. relative must establish the ability to financially support the foreign relative by filling in Form I-864 and submitting the appropriate supporting documents. If the petitioner is unable to support the relative financially, financial support can also be shown by showing the financial resources of other individuals in the household, through a co-sponsor or, in some instances, the assets of the foreign relative applicant. For more information on the Affidavit of Support, please click here.
In order for the Affidavit of Support to be valid, the U.S. citizen relative must have a domicile in the U.S., regardless of the fact that they are living abroad. If the U.S. citizen relative does not have a domicile at the time of the interview, he or she needs to be able to show, by a preponderance of the evidence, that a domicile will be established before or by the time the foreign national relative enters the U.S. The domicile requirement is very important as the immigrant visa will be denied if a domicile is not established.
- The Medical Exam
Each immigrant visa applicant must undergo a medical examination by an authorized physician to determine if he or she has all the required vaccinations and to determine whether or not the applicant has any communicable diseases or other health problems that would make them inadmissible to the U.S. Usually, the physician forwards the medical examination directly to the U.S. Consulate.
- The interview
During the interview, it is important to dress in a presentable fashion that shows that the applicant has respect for the consular officer and the process. Dressing in local or traditional garb is acceptable. DO NOT WEAR jeans, torn/ripped clothing (even if it is fashionable) clothing with objectionable words or pictures, or other inappropriate clothing. The first impression you make on an officer will affect how the officer will conduct the interview.
For most visa applicants, the visa interview is the most nerve-wracking part of the entire process. In the case of most relative petitions, the interview is primarily to verify the authenticity of the documents submitted and to make sure that the applicant is eligible to become a legal permanent resident.
In cases where the application is based on marriage, the consular officer will also ask questions to ascertain whether or not the marriage is actually bona fide, or real. This is especially true in cases where the marriage is relatively short in duration or where there has been a long separation, physically, between the spouses.
Applicants must bring with them their passport, the documents listed above and any other documents requested by the Consulate. Please note that each U.S. Consulate has different rules and some consulates request that all applicants bring additional documents or application forms.
Note 1: In most cases, the U.S. relative petitioner will not be allowed at the interview. Exceptions may be made in the case of minor children who are allowed to have an adult accompany them to an interview, the elderly, or for disabled applicants.
Note 2: Applicants should bring with them evidence that the relationship between the U.S. relative and the applicant has been maintained. This is especially true of spouses of U.S. relatives.
It is very important that each visa applicant be thoroughly prepared for the interview. The applicant should review a copy of all the application forms that have been submitted.
- The Immigrant Visa Packet
Upon approval of the immigrant visa, each applicant will receive their passport with the “immigrant visa” stamped in it. The stamp, called the I-551 stamp, is proof that the applicant has been approved to become a legal permanent resident upon entry to the U.S. The applicant will also receive a sealed package that contains all the original documents submitted to the consulate. DO NOT OPEN THE PACKAGE. This package must only be opened by the U.S. Customs and Border Protection Officer at the U.S. port of entry. If opened, the applicant must contact the U.S. Consulate immediately so they can advise on what to do.
- Pay the USCIS Immigrant Fee
Once the immigrant visa is approved but BEFORE leaving for the U.S., each applicant must pay the USCIS Immigrant Fee. Payment must be made online through USCIS ELIS. While non-payment of this fee will not affect the application or legal permanent resident status, the actual Green Card will not be produced until and unless this fee is paid.
Step 4: Arriving in the U.S.
- Enter the U.S.
With passport and sealed package in hand, each applicant must generally enter the U.S. within six months of the visa stamp, although the visa stamp is generally good for one year. Furthermore, children who are aging-out because they are turning 21 must enter the U.S. before they turn 21. The primary visa applicant must enter first or the family members must enter at the same time as the primary visa applicant.
Upon entry, the U.S. Customs and Border Protection (CBP) Officer will open and inspect the sealed package and the I-551 stamp. He or she may ask additional questions regarding where the applicant will be staying and the reason for the application. The CBP officer will then place a rubber stamp in the passport that has the date of entry next to the I-551 stamp and write in the Alien Number (A-Number). This stamp evidences that the applicant has entered the U.S. as a Legal Permanent Resident. Until the Green Card is received in the mail, the I-551 stamp together with the CBP stamp is proof of legal status in the U.S.
If the Green Card is lost/doesn’t arrive and a replacement must be ordered, then the new legal permanent resident may use the passport with the I-551 stamp and entry stamp as proof of status and employment authorization. The I-551 stamp may also be used for travel and re-entry up until the visa expires. If the visa expires and the physical Green Card has still not been issued, the new LPR may make an InfoPass appointment at a local USCIS office to obtain another I-551 stamp so that he or she can travel.
- The Green Card
Customarily, the Green Card arrives within a few weeks of the applicant’s entry into the U.S. The Green Card is sent to the address provided on the DS-230. If the Green Card does not arrive within 3-4 weeks of arrival, it is best to contact USCIS to see if the Green Card has been returned as undeliverable. The U.S. Postal Service will not forward the Green Card if the mail-to address has changed.
Note: The applicant may also receive his or her social security card in the mail if he or she selected that option on the DS230. If the option to automatically have a social security card generated was not selected or if several weeks have passed and the applicant has not received the card, the applicant must contact the local Social Security Office.
- Establish Ties
Obtaining Legal Permanent Residency (LPR) is a privilege, not a right. Upon gaining legal permanent resident status, the foreign national relative should seek to establish their home in the U.S. Further, they should become familiar with how they can lose their legal permanent resident status. To learn more about how to maintain legal permanent resident status, click here.
- Removal of Conditions
Spouses of U.S. Citizens or legal permanent residents who obtain immigrant visas through the I-130 process are given “conditional resident” status if their marriage was less than 2 years old on the date of the issuance of permanent residence (the date they entered the U.S.). The same is also true for step-children of the U.S. Citizen or legal permanent resident. These individuals receive a Green Card that is only valid for 2 years. In the 90 days preceding the expiration of the Green Card, these individuals must apply to “Remove the Conditions.” To learn more about Removal of Conditions please click here.
- Naturalization and U.S. Citizenship
Most LPR’s can apply for U.S. Citizenship after 5 years. Those married to U.S. Citizens can apply after only 3 years. For more information on how to become a naturalized U.S. Citizen, please click here.
Stephanie, as a U.S. Citizen, can petition for her parents to become legal permanent residents. As she is currently residing in Italy where a local USCIS Field Office is located (Rome), she should be permitted to file her I-130 directly to the USCIS Field Office. It is important for Stephanie to remember that she must establish that she still has a domicile in the U.S. If she no longer has a domicile in the U.S., she must prove by a preponderance of the evidence that she will establish a domicile by the time her parents and she return to the U.S.
Stay tuned to our next Article to see how the I-130 Process plays out for Juan.
The Form I-130, Immigrant Petition for Alien Relative is the most often used method by foreign national relatives of U.S. Citizens and Green Card holders, to come to the U.S. to live permanently. The Form I-130 may also be filed outside the U.S. where the U.S. Citizen or LPR is lawfully residing in a foreign country. While many can be reunited with their U.S. relatives in a matter of months, the process can be quite complicated and keep families separated for very long if the right steps are not taken.
VisaPro attorneys successfully help U.S. Citizens, Green Card holders, and their foreign national relatives through the I-130 and immigrant visa process.
Contact VisaPro if you are a U.S. Citizen or Green Card holder, intending to bring your family to the U.S. Our experienced attorneys will be happy to assist you.
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