1
Consular Processing
CLINIC Convening
Colorado Springs, CO
May 21, 2009
2
Speakers
Kristina Karpinski, CLINIC Peggy Gleason, CLINIC Guest Speaker: NVC Director, Lynne P.
Skeirik
3
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
4
Resources
22 CFR 40-42 9 Dept of State, Foreign Affairs Manual www.travel.state.gov Consular web sites and visa bulletins [email protected] AILA Visa Processing Guide
5
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 [email protected]
6
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
7
Documentation Problems
Use original primary documents
Check Foreign Affairs Manual for availability of documents
8
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
9
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.
10
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
11
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
12
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
13
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
14
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
15
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
16
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
17
How to Challenge Denial
Negotiate with Consul – supply further documents on issue
If legal error – request advisory opinion, Ofc of Public Liaison, DOS
[email protected]– Rm L703, DOS, 2401 E St. NW, Washington, DC
20520 fax 202 663-3899, ph 202 663-1225
18
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.
19
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
20
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
21
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
22
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
23
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 [email protected] in problem cases Some consulates very unresponsive, be
insistent, go to supervisory level
24
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
25
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
26
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
27
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.
28
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
29
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?
30
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?
31
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?
32
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?
33
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?
34
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?