what actually happens in a family- based consular ... - 01...form i-130 form g325a for both...

WHAT ACTUALLY HAPPENS IN A FAMILY-

BASED CONSULAR PROCESSING CASE

Minal Kode Ghassemieh, MG Law, PLLC and Sound [email protected]

Stephen Robbins, Robbins Law, [email protected]

INTRODUCTIONS

2019 NW Regional Immigration Law ConferenceBasic Track Session 10: Family-based consular processing cases

Minal Kode Ghassamieh & Stephen Robbins

February 14-15, 2019 of 15

Steps for Consular Processing

Practical Aspects of Consular Processing

PRESENTATION OVERVIEWFAMILY BASED CONSULAR PROCESSING

CONSULAR PROCESSING (IV) VS. ADJUSTMENT OF STATUS (AOS)

CONSULAR PROCESSING VS. ADJUSTMENT OF STATUS



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Petitioner must establish their eligibility to file the petition as:

A USC

A LPR

STEP 1: DETERMINE BASIS TO IMMIGRATE

USCs can file petitions on behalf of the following relatives:

Spouse

Child

Siblings

Parent

Unmarried Son/Daughter

Married Son/Daughter

U.S. CITIZEN PETITIONERS



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LPRs can file petitions on behalf of the following relatives: Spouse

Child

LPR PETITIONERS

The following relatives cannot be included on family-based IV petitions:Uncles/Aunts and Nieces/NephewsGrandparents/GrandchildrenIn-lawsCousinsParents or Siblings of LPRsMarried Children of LPRs

INELIGIBLE BENEFICIARIES



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Congress controls how many beneficiaries from each country can immigrate to the U.S. annually.

NUMERICAL LIMITATIONS OF VISAS

“Immediate Relatives” are NOT subject to numerical limitations and include:

Spouse of USC

Child (unmarried and under 21) of a USC

Parent of a USC (if petitioner is 21 or older)

IMMEDIATE RELATIVES



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Preference Immigrants ARE subject to numerical limitations, and include:

F1: Unmarried child of USC

F2A: Spouse or Child of LPR

F2B: Unmarried child of LPR

F3: Married child of USC

F4 Sibling of USC

PREFERENCE CATEGORIES

All IV petitions are given a PRIORITY DATE

PRIORITY DATE determines the beneficiary’s place in line for available visas

Preference immigrants must wait for the PRIORITY DATE to become current

PRIORITY DATE



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Form I-130: used to establish qualifying relationship for IV.

Filing G28 (if represented by legal counsel)

Form I-130

Form G325A for both Petitioner and Beneficiary

Evidence of Petitioner’s Identity and Status

Evidence of Beneficiary’s Identity

Evidence of Qualifying Relationship

STEP 2: FILE THE IMMIGRANT PETITIONFORM I-130

Petitioner must establish their eligibility to file the petition as:

A USC: Passport, Birth Certificate, ID

A LPR: LPR Card, Birth Certificate, IDAny documents not in English must be translated

EVIDENCE OF STATUS



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Petitioner must prove beneficiary is one of the following:

Spouse

Child

Parent

Unmarried Child

Married Child

Sibling

EVIDENCE OF THE QUALIFYING RELATIONSHIP

Civilly-registered marriage certificate,

Proof of legal termination of previous marriages for both Petitioner and Beneficiary

Photographs of both Petitioner and Beneficiary (engagement, marriage, etc.)

EVIDENCE FOR SPOUSAL RELATIONSHIP



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Petitioner must establish the parent/child relationship with the beneficiary. Birth Certificate, Marriage Certificate, Previous

Divorce Decrees

INA §101(b)(1): Definition of a Child

Only a USC who is 21 may petition for a parent

EVIDENCE FOR RELATIONSHIPS INVOLVING CHILDREN

Must determine two children’s eligibility

Timely registered birth certificates for both Petitioner and Beneficiary

Siblings must have at least one common parent (reflected on the birth certificates)

Petitioner must be 21 and a USC at time of filing.

EVIDENCE FOR SIBLING RELATIONSHIPS



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USCIS notifies the Petitioner of a decision.

Denied

Request for Evidence

Approved

STEP 3. WAIT FOR A DECISION ON YOUR PETITION

NVC will notify petitioner and beneficiary when it is time to collect visa application fees and supporting documentation. Pay Fees

Submit Visa Application Form DS-260

Collect Financial Documents, Form I-864

Collect Supporting Documents (Copies)

Submit Documents to NVC

Request for Evidence or Correspondence

NVC will notify petitioner and beneficiary when the visa petition is received and when IV number is available.

STEP 4. WAIT FOR NOTIFICATION FROM NVC



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Once an IV number is available or priority date becomes current, the Consular Office will schedule an interview for the beneficiary.

Prepare Client for Interview!

The Consular Office will process the case and decide if beneficiary is eligible for an IV.

STEP 5. IV INTERVIEW

Consular Officer will give beneficiary the “visa packet.” DO NOT OPEN

Beneficiary will be instructed to pay a USCIS Immigrant Fee.

At U.S. entry, beneficiary will give visa packet to U.S. Customs and Border Protect (CBP).

Beneficiary will receive LPR Card in mail after entry in the U.S.

STEP 6. IV GRANTED



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PRACTICE TIPS

• BEWARE OF CONSULAR PROCESSING!• Consular processing is perhaps the highest stakes work we do.

Your client is leaving the country without any guarantee that they can come back.

Even if you do everything right, small deficiencies or unanticipated delays may result in weeks or months abroad.

The doctrine of Consular Nonreviewability No appeal!

If the Consulate gets something wrong, your available recourse is asking them to pretty-please change their mind.

Even a clear error can take months to resolve.

WHAT MAKES IT HIGH STAKES



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The law sucks.

Your job is not to cure bad law through misrepresentation.

212(a)(6)(c)(i)- -Fraud and misrepresentation. A false representation of a material fact with knowledge of its falsity and intent to deceive.

ALSO…

COMMIT YOURSELF TO HONESTY

You may be very smart, but you will struggle to remember what type of perjury you’ve told each client to commit.

Even if you think you are super good at perjury, do you trust your client to effectively perjure themselves?

“The government has no way of knowing.” You don’t know what the government knows.

That’s not the point.

COMMIT YOURSELF TO HONESTY



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Don’t just run through the questions and check off YES or NO.

Try to give them an idea of why their answers matter. False Claim to U.S. Citizenship Client in prep: “No, no, no, no, etc.”

Client at Interview: “Probably, I think so.”

EDUCATE YOUR CLIENT

You should know everything there is to know about your client. Get to know them, and be familiar with all of the facts .

Reminder: You will be sending your client abroad without any guarantee that they will be able to return. Your job is to know if they can come back, and you can only know that if you know your client.

Do you know all the grounds of inadmissibility? Do you know enough to issue spot?

EDUCATE YOURSELF



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Your client should travel abroad with a well-organized packet.

They should be familiar with the contents of their packet. “They are asking for the paper.”

“What paper?”

“I don’t know.”

Don’t just give them an envelope. Go through it with them, and make sure they take time to study the packet.

Your client will represent themselves at their interview. Make sure they listen carefully to the question before answering, that they answer only the question asked, and that they don’t leave the interview until they are clear what is happening.

PREPARE YOUR CLIENT

Even if you’re totally prepared, weird things can happen. Client forgets an important document.

Client is robbed or loses their passport.

Unexpected events could lead to delays of weeks or months.

“But you told me I would only be in Mexico for one week!” Be clear with your client about the risks, and put your advisals in

writing.

MANAGE EXPECTATIONS AND CYA



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