Good Explanation of K-3 Holds

[miker32us 6]

June 10 2006

HOLD UP OF FIANCÉ(E) I-129F PETITIONS

by

Cyrus D. Mehta*

The International Marriage Broker Regulation (IMBRA) was signed by the President on January 5 of this year. A 60-day deadline of March 5, 2006 was established for the Department of Homeland Security to begin asking K-1 petitioners for their criminal background information specifically relating to domestic violence, sexual assault or child abuse. The DHS has not met the deadline for collecting the information. At the AILA-NY Chapter Meeting on June 5, 2006, Keith Canby, Adjudications Manager of the USCIS Vermont Service Center indicated that the VSC is currently holding all I-129F cases received on or after March 6, 2006. Mr. Canby indicated that these cases would be held until HQ issues guidance on how to proceed with respect to capturing information required by IMBRA.

The IMBRA, in summary, requires the petitioner to include a list of violent crimes, including assault and battery as well as crimes relating to substance or alcohol abuse. DHS will provide this information, as well as the results of a search of any other criminal convictions, to the foreign national beneficiary. The DOS is also prohibited from approving K visas if the petitioner has petitioned more than two K visas in the past, or less than two years have passed since the petitioner filed for a K visa and that visa was approved. The DHS may waive this bar, unless the petitioner has a history of violent crimes, and then the bar cannot be waived unless the DHS has determined that there are extraordinary circumstances, or the individual’s crimes were a result of domestic violence, the individual was not the primary perpetrator of the violence, and the crime did not result in serious bodily injury. All K visa beneficiaries will be provided a domestic violence pamphlet.

In the mean time, the VSC approved several K-1 fiancé(e) petitions in error even though they were filed on or after March 6, 2006. They were sent to the National Visa Center (NVC), which in turn dispatched the case to the consular post for the K-1 visa processing. On May 6, 2006, the DOS issued a cable (P 121528Z May 06) confirming that the cases approved in error will be returned to the NVC. Even cases with firm appointments at consular posts or those that have been treated as pending under Section 221(g) are to be delayed while the petition is returned for further information. The DOS cable indicates that DHS will send additional questionnaires to the petitioners inquiring about their possible criminal backgrounds. When the petition is compliant with the IMBRA, it will be returned to post from USCIS through NVC for processing. The DOS cable specifically states that K-3 spousal petitions will not be recalled from the posts.

While the IMBRA affects K-1 petitions, it also modifies the data capturing procedures for K-3 petitions. Multiple petitions for fiancé(e)s and spouses filed by the same petitioner shall be entered into a multiple tracking database. Once a petitioner has had two approved petitions, whether under the K-1 or K-3 visa category, a subsequent petition filed within 10 years of the first approved petition shall result in a notification to the petitioner and beneficiary about the number of previously approved fiancé(e) or spousal petitions in the database. While there has been no official announcement, it appears that K-3 petitions are also held up at the Missouri Benefits Center. Until the hold on fiancé(e) and spousal I-129F petitions are lifted, it may be quicker to rely on the I-130 petition to directly sponsor a foreign national spouse for lawful permanent residency. Of course, for this to happen, the US citizen sponsor would first need to marry the foreign national overseas. However, there now exist I-130 petition processing delays in excess of six months. Some posts allow US citizens to directly file I-130 petitions and this could speed up the processing of the spouse who could enter the United States as a lawful permanent resident or green card holder.

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*Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates, P.L.L.C. He is the Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.

[aussiewench 9]

There is also a GAO document that I posted HERE that also shows how some K-3's will be affected by the disclosure to the beneficiary of certain convictions of the USC petitioner.

[maria_b84 0]

OMG thats scary!!!!

Maria

[miker32us 6]

It appears from this educated announcement that until USCIS enters all the petitioners info in a database to make sure no one is filing multiple applications there will be no movement on I-129F's out of MSC. So earlier posts that indicated IMBRA is not affecting I-129F's for those already married might only pertain to the RFE's going out asking for the petitioner's criminal background. It is most certainly affecting the I-129F's now!!!!

OMG thats scary!!!!

Maria

[Eva Malahova 0]

There is also a GAO document that I posted HERE that also shows how some K-3's will be affected by the disclosure to the beneficiary of certain convictions of the USC petitioner.

So I guess we are stuck...DCF would not work either right? I don't think Russia allows DCF unless you have lived there for 6 months prior to applying....

What does this mean??:"Some posts allow US citizens to directly file I-130 petitions and this could speed up the processing of the spouse who could enter the United States as a lawful permanent resident or green card holder."

[bradentejas 0]

What does this mean??:"Some posts allow US citizens to directly file I-130 petitions and this could speed up the processing of the spouse who could enter the United States as a lawful permanent resident or green card holder."

It is referring to the DCF at a consular post abroad.... Stating that marriage abroad and a DCF at the local consular post will possibly be faster than pursuing a Visa stateside resulting in the same LPR or Green Card.

[Eva Malahova 0]

What does this mean??:"Some posts allow US citizens to directly file I-130 petitions and this could speed up the processing of the spouse who could enter the United States as a lawful permanent resident or green card holder."

It is referring to the DCF at a consular post abroad.... Stating that marriage abroad and a DCF at the local consular post will possibly be faster than pursuing a Visa stateside resulting in the same LPR or Green Card.

I just wanted to make sure I understood it correctly.

Thank you.