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Consular Processing

CLINIC Convening

Colorado Springs, CO

May 21, 2009

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Speakers

Kristina Karpinski, CLINIC Peggy Gleason, CLINIC Guest Speaker: NVC Director, Lynne P.

Skeirik

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AGENDA

Review of process, documentation issues, DNA testing, preparing clients for consular interviews

common denials, waivers, filing process, permission to reapply, appeals, how to communicate with consulates, CSPA issues at consulates

affidavit of support, derivatives following to join, and consular return of petitions to CIS, revocation

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Resources

22 CFR 40-42 9 Dept of State, Foreign Affairs Manual www.travel.state.gov Consular web sites and visa bulletins legalnet@state.gov AILA Visa Processing Guide

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National Visa Center

Centralizes/administers initial processing– 32 Rochester Ave.– Portsmouth, NH 03801-2909

(603) 334-0700 Director Lynne Skeirik, Guest Speaker Took over initial document review and

interview scheduling Contact at nvcattorney@state.gov

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Consular Processing

Two ways to become a lawful permanent resident:– Adjustment of Status in US– Consular Processing

Must be admissible under INA 212 (a) Most commons bars to eligibility

– Unlawful presence and permanent bar for unlawful presence and return

– Affidavit of support problems– Prior removal– Crimes – Fraud

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Documentation Problems

Use original primary documents

Check Foreign Affairs Manual for availability of documents

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If primary documents unavailable:

Secondary evidence Church records – under seal of church where

ceremony took place, shows names of parents and child

School records – letter from school authorities, dates of admission, child’s date and place of birth, names of parents

Census records – name, place and date of birth

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If Secondary Evidence Unavailable:

Affidavits – written statements sworn and affirmed by at least 2 people– Must have been living at the time of event and

have personal knowledge of it– State relationship to petitioner– Describe details of event– FAM – check listing of availability of docs.

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DNA Testing

Used only where consular officer sees insufficient proof of bona fide relationship

Primary and secondary evidence do not provide sufficient evidence of claimed relationship

“entirely voluntary” Expensive – $800 per person Also bone density testing for age Very common in certain countries: ex. Haiti, Ethiopia,

Nigeria, all of West Africa

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DNA Test Process

DOS gives beneficiary list of accredited laboratories

Beneficiary has DNA sample taken overseas Petitioner has DNA sample taken in US Laboratory communicates results directly

with Consulate

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Contesting DNA Request

Only supposed to ask for DNA test where consular officer doubts credibility of primary and secondary evidence

Ask consulate for written explanation of why documents are not sufficient

Make consular officers go through required steps

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Consular Interview

Applicant appears for interview Submits medical exam results and original

documents if not already filed at NVC Interview by consular official Signs DS-230 Part 2 Application is approved or refused

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Preparing Clients for Interviews

Counsel family about separation, typical processing times – sign statement of understanding

Oblige client to supply accurate address, phone, email and fax contact while abroad, and same from petitioner in U.S.

Rehearse with client – prepare them for hostile questions and screening on grounds of inadmissibility

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Interviews at Consulate

Punctual, have well organized documents Eye contact with interviewer Don’t volunteer more info than asked Dress and behave with respect for

interviewer Note name of interviewer Call/email counsel when leave consulate

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Next Step

If refused, obtain additional documents or file waivers

One year to file evidence Seek review by senior consular officer If approved, six months to enter at port of

entry If approved at border, applicant enters as

LPR

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How to Challenge Denial

Negotiate with Consul – supply further documents on issue

If legal error – request advisory opinion, Ofc of Public Liaison, DOS

legalnet@state.gov– Rm L703, DOS, 2401 E St. NW, Washington, DC

20520 fax 202 663-3899, ph 202 663-1225

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File a Waiver

I-601 or I-212– File at CIS office overseas/often in Consulate– INVESTIGATE PROCESS AT PARTICULAR

CONSULATE – any special form? Separate waiver filing appointment? CIS on site?

Requires USC or LPR spouse or parentExtreme hardship to the qualifying relativeSupporting documents keyDetailed affidavits, property, community ties, proof of

relationships, medical issues, schools, etc.

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I-601 for Crimes

Some crimes are waivable under 212(h)– Not drugs except 30 g or less marijuana, not

murder– Extreme hardship to USC or LPR spouse, parent

or child (or 15+ years ago)– Show rehabilitation and remorse as well as

qualifying relationship and hardship– Provide certified copies of court dispositions

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I-212 permission to reapply

For prior removals – and for permanent bar cases ten years after departure

Balance Positive v. negative equities – general humanitarian factors, relatives, and hardship relevant, as are community ties. Negative factors are police or immigration history of violations, bad acts.

Sometimes possible to file in US prior to departure

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Waivers and I-212 Appeals

File Notice of Appeal within 33 days on form I-290B, with fee of $585

File at office/consulate that made the decision Record of proceeding prepared and forwarded to AAO, 20

Massachusetts Av. NW, Rm A3042, Washington, DC 20529 - file brief, new evidence with AAO

Call/email counsel when leave consulate

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Meeting One-Year Requirement

Must appear for interview within one year of scheduled interview

Submit documents requested at interview w/in one year

After one year consulate sends warning Request reinstatement due to circumstances beyond

control (illness, inability to secure documents) Case closed, I-130 revoked after two years

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Communication with Consulates

View consular web site at www.state.gov for names of individuals in Imm. Visa section

Email that officer about difficult case in advance

Cc legalnet@state.gov in problem cases Some consulates very unresponsive, be

insistent, go to supervisory level

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CSPA cases at Consulates

How to approach IV section about scheduling a child who is covered under CSPA

Format of cover letter- Do CSPA formula in letter with the dates

inserted, show coverage- Go to supervisor if fail to heed- Some consulates difficult to convince

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WHEN IS I-864 REQUIRED?

Affidavit required in almost all family based cases and employment cases where a relative files the worker petition (or owns 5% of business filing petition).

Affidavit not required - file I-864W– Immigrant can be credited with 40 quarters of work (see

DOS Cable of February 22, 2002)– Widow/er of USC– Child seeking residence who will become a citizen upon

arrival in the US under the Child Citizenship Act of 2000

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ISSUES FOR INDIVIDUAL CONSULATES

Some consulates insist on a new affidavit and supporting documents if affidavit is more than 6 months old./ Some disregard real estate in home country as asset

Many consulates will ask for IRS generated tax transcripts though they can accept IRS 1040s too

Some insist on updated employment information for sponsor or joint sponsor if close to income cutoff

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OVERSEAS DERIVATIVES

Only for spouse or children of persons in the preference categories (family or employment).

After principal has adjusted (or at time of filing adjustment) File I-824 with USCIS.

Once I-824 approved – sent to NVC to begin consular processing for derivatives

Some consulates will begin processing upon request of derivative and proof of principal’s status/family relationship.

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Consular Return of Petitions to CIS

See rules at 9 FAM 42.43 N1(b) Consulate should review, not readjudicate Can return petition if fraud or clear error

appears due to information obtained at consulate

Returns to NVC If CIS reaffirms, Consulate should approve

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Problems

Mrs. D is denied an immigrant visa for unlawful presence and a prior deportation. She is consular processing in Honduras. She has a US citizen husband. What does she need to file? How does she file it?

What can she do if denied the waiver? How?

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Problems

Mr. X has an immigrant visa interview in Mexico. He has a 3 DUI charges over the last few years. What will happen at interview?

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Problems

Mrs. B has a consular interview in Honduras. She is denied for unlawful presence, and presents her waiver the same day. The consulate takes her fee, and tells her they will be in touch. She walks away with a form that says Questions on Hardship. What should she do?

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Problems

Your client has a child following to join his LPR mother in the U.S. She is interviewing for adjustment this week in Baltimore. What should you file at the time of her interview to assure that the child gets an interview at the consulate as soon as possible?

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Problems

You have a client whose child (age 20) tries to consular process in Trinidad. The medical reveals marijuana use, and the consulate finds him inadmissible as a drug abuser. What can you do?

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Problems

You have two children of your naturalized US citizen client who you argue are covered by the Child Status Protection Act. You want to process them through the American Consulate in Manila. How do you approach the consulate? What do you do if the consulate ignores you?