Hi All,
Article posted by Michael Phulwani - one the most well-known immigration attorneys in the Indian Community in New York. Posted in the News India-Times on 9/17/2004.
Update on I-130 and I-129 Visa Petitions
On July 15, 2004, U.S. Citizenship & Immigration Services (USCIS) issued the following public notice to all customers with a pending 1-130 petition. USCIS is now processing Form 1-130, Petition for Alien Relative, as a visa number becomes available.
Filing and approval of an 1-130 relative petition is only the first step in helping a relative immigrate to the United States. Eligible Family members must wait until there is a visa number available before they can apply for an immigrant visa or adjustment of status to a lawful permanent resident. This process will allow USCIS to concentrate resources first on cases where visas are actually available. This process should not delay the ability of one's relative to apply for an immigrant visa or adjustment of status. Refer to www.state.gov/travel to determine current availability dates.
* If you filed an 1-130 petition that is currently pending with USCIS, please be advised that USCIS will adjudicate your petition based upon visa availability which means that the estimated processing time listed on your receipt notice may no longer be accurate.
* If you are a U.S. Citizen or lawful permanent resident and plan to file a petition for a qualifying relative, you are encouraged to file as soon as you are eligible in order to establish your relatives place in line even if the petition may not be decided for some time to come. Upon filing, USCIS will send you a receipt that will establish a place in line for a visa called a "priority date" USCIS will adjudicate your Form 1-130 prior to visa availability (or within six months if a visa is immediately available upon filing).
ADVANTAGES:
The first advantage of this rule is that 1-130 petitions for immediate relatives will now be processed faster and take less time than the present time frame of 8-12 months. This is due to the fact that 1-130 petitions in the third & fourth preference categories will be kept pending till a visa number becomes available, which could be 10-12 years henceforth. As USCIS is now required to process 1-130 petitions for which a visa number is available, petitions for immediate relatives will be processed without any delay as they are not subject to numerical limitations and do not have to wait for a visa number to become available. In view of the recent notice, we can now hope that 1-130 petitions for immediate relatives would be processed in half the time previously required, i.e. within 3-4 months.
The second advantage of this rule is that derivative beneficiaries in the third & fourth preference categories may be able to benefit from the provisions of Child Status Protection Act (CSPA). CSPA provides that in order to determine whether a beneficiary is eligible to apply for an immigrant visa under CSPA, the number of years a petition is pending should be deducted from the age of the beneficiary. The time taken from the date of filing the petition to its date of approval is the number of years a petition is pending. In the present scenario, if a petition is filed under fourth preference category in 2004 and a visa number is available for this petition only in 2016, i.e. 12 years henceforth, at which time the petition is processed and approved, the derivative beneficiary get the benefit of these 12 years to deduct from his age. So even if the derivative beneficiary is above 21 years in 2016, as long as his age after deducting the 12 years is below 21 years, he/she may be eligible to apply for an immigrant visa along with his/her parents.
CSC to adjudicate Immediate Relative Cases from NSC and TSC
The California Service Center has advised that the Texas and Nebraska Service Centers will be forwarding their new I-130s to CSC for processing. These cases will receive CSC receipts, and, to check expected timing on the applications, applicants should monitor the processing time reports for California, rather than for the setvice center that transferred the cases.
Filings should continue to be made at the service center having regular jurisdiction, and that service center will forward the cases to CSC. The arrangement with respect to NSC cases is expected to be temporary, but may be permanent as regards TSC.
In addition, TSC will be transferring pending immediate relative I-130s and family-based I-130s with, current priority dates to California. CSC will not be issuing receipts on these, but you should receive a transfer notice indicating that the case has been shipped if it is transferred. Once the case is transferred, processing times for CSC, not TSC will apply. However, CSC asks that you give them a chance to actually process the case once it is in their possession before inquiring about status.
I-130 Direct Filing Procedure Tightened in India
U.S. Citizenship & Immigration Services, New Delhi, has tightened its rules for U.S. citizens seeking to direct file I-130s there (the office handles such filings for all of India). Henceforth, the USC will be required to show 60 days presence in India prior to filing. Normally, simply showing an entry stamp can do this.
Pursuant to the above announcement, the following questions were posed to the consulate in New Delhi:
1. Is this 60 days from the time they enter India to the date of filing?
2. If USC goes to India to get married, is it 60 days from the day they marry to the date of the filing?
3. Does the USC have to remain in India after filing the I-130? If yes, until when?
Joseph P. Galoski, Acting Officer-in-charge, USCIS, New Delhi responded to the above questions:
"60 days starts upon arrival into India, not from the date of marriage. The 60 days also must be immediately preceding the filing of the petition, with no departures from the country within that 60-day period. It is not necessary for the petitioner to remain in India subsequent to the filing of the 1-130 at this office, however, filing at this office must be done in person, by both spouses."
USCIS sending I-129s to Kentucky Consular Center rather than to Posts
In July 2004, the Department of State (DOS) sent a cable to all Diplomatic and Consular Posts regarding the routing of I-129 petition visa Kentucky. The details of this cable are enumerated herein:
1. As of July 6, 2004 the Department of Homeland Security's Citizenship and Immigration Services began sending all approved I-129 petitions (not I-129F petitions) to the Kentucky Consular Center (KCC), rather than sending them directly to the overseas visa processing post. KCC will scan the petition and transmit it electronically to post.
2. DHS and the Department recently agreed to route all approved I-129 petitions to the KCC starting on July 6, 2004. I-129F petitions for fiancees and petitions for spouses of U.S citizens will continue to be sent to the National Visa Center (NVC). Initially, KCC will scan and transmit electronically (in the form of an adobe acrobat document) approved petitions. Eventually, 1-129 petition information will be made accessible to posts via the Consular Consolidated Database (CCD). Centralizing processing at KCC will bring uniformity and consistency to the process. A Fraud Prevention Unit will start up at KCC in the fall under the direction of an experienced Consular Officer. This unit will identify fraud indicators that posts will be able to investigate further during the visa adjudication process.
3. Posts are encouraged to establish a dedicated e-mail address to receive NIV petitions in order to ensure efficient transmission of data. All posts, whether establishing a dedicated e-mail address or not, are requested to send to KCC an e-mail address where they would like petitions to be sent.
4. KCC will only transmit approved 1-129 petitions. Other documentation associated with the case will be scanned and sent to post on an "as-needed" basis, per request from post. Requests for additional information will be handled on a case-by-case basis.
5. KCC will not be handling public inquiries related to the processing of NIV petition-based cases. Questions about particular cases will continue to be referred to overseas embassies and consulates as they are now.
Article posted by Michael Phulwani - one the most well-known immigration attorneys in the Indian Community in New York. Posted in the News India-Times on 9/17/2004.
Update on I-130 and I-129 Visa Petitions
On July 15, 2004, U.S. Citizenship & Immigration Services (USCIS) issued the following public notice to all customers with a pending 1-130 petition. USCIS is now processing Form 1-130, Petition for Alien Relative, as a visa number becomes available.
Filing and approval of an 1-130 relative petition is only the first step in helping a relative immigrate to the United States. Eligible Family members must wait until there is a visa number available before they can apply for an immigrant visa or adjustment of status to a lawful permanent resident. This process will allow USCIS to concentrate resources first on cases where visas are actually available. This process should not delay the ability of one's relative to apply for an immigrant visa or adjustment of status. Refer to www.state.gov/travel to determine current availability dates.
* If you filed an 1-130 petition that is currently pending with USCIS, please be advised that USCIS will adjudicate your petition based upon visa availability which means that the estimated processing time listed on your receipt notice may no longer be accurate.
* If you are a U.S. Citizen or lawful permanent resident and plan to file a petition for a qualifying relative, you are encouraged to file as soon as you are eligible in order to establish your relatives place in line even if the petition may not be decided for some time to come. Upon filing, USCIS will send you a receipt that will establish a place in line for a visa called a "priority date" USCIS will adjudicate your Form 1-130 prior to visa availability (or within six months if a visa is immediately available upon filing).
ADVANTAGES:
The first advantage of this rule is that 1-130 petitions for immediate relatives will now be processed faster and take less time than the present time frame of 8-12 months. This is due to the fact that 1-130 petitions in the third & fourth preference categories will be kept pending till a visa number becomes available, which could be 10-12 years henceforth. As USCIS is now required to process 1-130 petitions for which a visa number is available, petitions for immediate relatives will be processed without any delay as they are not subject to numerical limitations and do not have to wait for a visa number to become available. In view of the recent notice, we can now hope that 1-130 petitions for immediate relatives would be processed in half the time previously required, i.e. within 3-4 months.
The second advantage of this rule is that derivative beneficiaries in the third & fourth preference categories may be able to benefit from the provisions of Child Status Protection Act (CSPA). CSPA provides that in order to determine whether a beneficiary is eligible to apply for an immigrant visa under CSPA, the number of years a petition is pending should be deducted from the age of the beneficiary. The time taken from the date of filing the petition to its date of approval is the number of years a petition is pending. In the present scenario, if a petition is filed under fourth preference category in 2004 and a visa number is available for this petition only in 2016, i.e. 12 years henceforth, at which time the petition is processed and approved, the derivative beneficiary get the benefit of these 12 years to deduct from his age. So even if the derivative beneficiary is above 21 years in 2016, as long as his age after deducting the 12 years is below 21 years, he/she may be eligible to apply for an immigrant visa along with his/her parents.
CSC to adjudicate Immediate Relative Cases from NSC and TSC
The California Service Center has advised that the Texas and Nebraska Service Centers will be forwarding their new I-130s to CSC for processing. These cases will receive CSC receipts, and, to check expected timing on the applications, applicants should monitor the processing time reports for California, rather than for the setvice center that transferred the cases.
Filings should continue to be made at the service center having regular jurisdiction, and that service center will forward the cases to CSC. The arrangement with respect to NSC cases is expected to be temporary, but may be permanent as regards TSC.
In addition, TSC will be transferring pending immediate relative I-130s and family-based I-130s with, current priority dates to California. CSC will not be issuing receipts on these, but you should receive a transfer notice indicating that the case has been shipped if it is transferred. Once the case is transferred, processing times for CSC, not TSC will apply. However, CSC asks that you give them a chance to actually process the case once it is in their possession before inquiring about status.
I-130 Direct Filing Procedure Tightened in India
U.S. Citizenship & Immigration Services, New Delhi, has tightened its rules for U.S. citizens seeking to direct file I-130s there (the office handles such filings for all of India). Henceforth, the USC will be required to show 60 days presence in India prior to filing. Normally, simply showing an entry stamp can do this.
Pursuant to the above announcement, the following questions were posed to the consulate in New Delhi:
1. Is this 60 days from the time they enter India to the date of filing?
2. If USC goes to India to get married, is it 60 days from the day they marry to the date of the filing?
3. Does the USC have to remain in India after filing the I-130? If yes, until when?
Joseph P. Galoski, Acting Officer-in-charge, USCIS, New Delhi responded to the above questions:
"60 days starts upon arrival into India, not from the date of marriage. The 60 days also must be immediately preceding the filing of the petition, with no departures from the country within that 60-day period. It is not necessary for the petitioner to remain in India subsequent to the filing of the 1-130 at this office, however, filing at this office must be done in person, by both spouses."
USCIS sending I-129s to Kentucky Consular Center rather than to Posts
In July 2004, the Department of State (DOS) sent a cable to all Diplomatic and Consular Posts regarding the routing of I-129 petition visa Kentucky. The details of this cable are enumerated herein:
1. As of July 6, 2004 the Department of Homeland Security's Citizenship and Immigration Services began sending all approved I-129 petitions (not I-129F petitions) to the Kentucky Consular Center (KCC), rather than sending them directly to the overseas visa processing post. KCC will scan the petition and transmit it electronically to post.
2. DHS and the Department recently agreed to route all approved I-129 petitions to the KCC starting on July 6, 2004. I-129F petitions for fiancees and petitions for spouses of U.S citizens will continue to be sent to the National Visa Center (NVC). Initially, KCC will scan and transmit electronically (in the form of an adobe acrobat document) approved petitions. Eventually, 1-129 petition information will be made accessible to posts via the Consular Consolidated Database (CCD). Centralizing processing at KCC will bring uniformity and consistency to the process. A Fraud Prevention Unit will start up at KCC in the fall under the direction of an experienced Consular Officer. This unit will identify fraud indicators that posts will be able to investigate further during the visa adjudication process.
3. Posts are encouraged to establish a dedicated e-mail address to receive NIV petitions in order to ensure efficient transmission of data. All posts, whether establishing a dedicated e-mail address or not, are requested to send to KCC an e-mail address where they would like petitions to be sent.
4. KCC will only transmit approved 1-129 petitions. Other documentation associated with the case will be scanned and sent to post on an "as-needed" basis, per request from post. Requests for additional information will be handled on a case-by-case basis.
5. KCC will not be handling public inquiries related to the processing of NIV petition-based cases. Questions about particular cases will continue to be referred to overseas embassies and consulates as they are now.
