Embassy's will no longer accept I-130

[meauxna 15]

Immigration attorney "Folinskyinla" posted the following AILA memo with information from Condi Rice:

THANK YOU FOLINSKYINLA

http://britishexpats.com/forum/showthread.php?t=421608

The text of Condi's cable as per AILA:

E.O. 12958: N/A

TAGS: CVIS, CMGT

SUBJECT: REFERRAL OF ALL I-130 PETITIONS TO USCIS SERVICE

OFFICES FOR ADJUDICATION

REF: 03 STATE 146632

1. Summary: CA and USCIS have completed a thorough analysis of the Adam Walsh Protection act and come to the conclusion that posts must cease accepting or adjudicating any I-130 petition for family-based immigrant status that was not adjudicated by USCIS, and inform any individual wishing to file such a petition that it is necessary to file it with the appropriate USCIS office and refrain from assisting further. This change is effective immediately. In any case in which a post has already accepted an I-130 from a petitioner but has not yet issued a visa, post must forward the petition to the appropriate USCIS overseas office as "not clearly approvable." We are working with USCIS and will provide subsequent guidance on processing I-600 petitions and previously approved I-130 petitions. CA recognizes that this change may cause difficulties and encourages posts to advise their resident American citizen communities that new procedures are in place so that they may plan ahead. End summary.

2. On July 27, 2006, the Adam Walsh Child Protection and Safety Act (Adam Walsh Act), Pub. L. No. 109-248, became law. Section 402 of that Act amends INA 204(a)(1) and 101(a)(15)(K), rendering ineligible to file a petition for immigrant status under INA 203(a) (I-130 or I-600), or for nonimmigrant K status (I-129F), any petitioner who has been convicted of a "specified offense against a minor," defined in section 111 of the Adam Walsh Act as an offense involving any of the following:

BEGIN QUOTE

A) An offense (unless committed by a parent or guardian) involving kidnapping.

B) An offense (unless committed by a parent or guardian) involving false imprisonment.

C) Solicitation to engage in sexual conduct.

D) Use in a sexual performance.

E) Solicitation to practice prostitution.

F) Video voyeurism as described in section 1801 of title 18, United States Code.

G) Possession, production, or distribution of child pornography.

H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.

I) Any conduct that by its nature is a sex offense against a minor.

END QUOTE

Section 402 of the Adam Walsh Act provides that the bar against filing a petition because of such a conviction will not apply if the Secretary of Homeland Security, in his sole and unreviewable discretion, determines that the petitioner poses no risk to the beneficiary.

3. USCIS has provided interim guidance to its adjudicators to search its IBIS database for criminal history record information regarding USPER petitioners in family-based immigrant status cases and K nonimmigrant status cases. If there is an IBIS hit for one of the specified offenses against a minor, the USCIS field office must issue a Request for Evidence for all police arrest records and court disposition documents, and must schedule the petitioner for fingerprinting.

4. Consular officers do not have access to criminal history record information regarding USPER petitioners and therefore are unable to determine whether a petitioner has a conviction for a specified offense against a minor that renders the petitioner ineligible under INA 204(a)(1)(A)(viii) or 204(a)(1)(B)(i)(II) to file a petition. The limited extract information in CLASS downloaded from the FBI's National Crime Information Center relates solely to aliens, and INA 105 provides for the use of such information "for the purpose of determining whether or not a visa applicant or applicant for admission has a criminal history record indexed in any such file."

5. In the absence of access to information that is essential to the determination of whether a petitioner is eligible to file a petition for immigrant status in a family-based classification, consular officers are unable to take any action on an unadjudicated I-130 petition. Rather, posts must advise individuals who seek to file such a petition that they should submit it directly to the appropriate USCIS office. USCIS maintains an office locator page, based on place of residence, on its website at https://egov.immigration.gov/crisgwi...n=offices.type

&OfficeLocator.office_type=OS. In cases in which a post has already accepted an I-130 for filing but has not yet issued an immigrant visa, the consular officer must consider the petition "not clearly approvable" because of the inability to fulfill INA 204(a)(1)'s requirement for a determination of the petitioner's eligibility to file. Pursuant to 9 FAM 42.41 N4.2-3(d) and 8 CFR 204.1(e)(3), posts must forward all such I-130 petitions that petioners filed at post, with all supporting documents, to the appropriate USCIS office. To reiterate, consular officers are no longer authorized to accept or adjudicate I-130 petitions at post under any circumstances. 9 FAM Appendix N 200 is being revised accordingly. We are preparing press guidance, which posts will be able to access at http://intranet.ca.state.gov/PPAffairs/ppaffairs.htm.

6. We are requesting clarification from USCIS regarding the validity, for Adam Walsh Act criminal record check purposes, of the fingerprint clearance procedures at the time of I-600 processing that are specified in Reftel (SOP-21) and 9 FAM 42.21 N13.3(d), as well as the applicability of section 402 of the Adam Walsh Act to petitions for family-based immigrant status or K nonimmigrant status that were approved prior to the act's effective date. Further guidance will follow our receipt of the USCIS clarification.

7. Minimize considered.

RICE

BT

#7956

[avoci 0]

Okay, so this is how I'm reading the information: The USC needs to petition and file the I-130 with the USCIS office that has jurisdiction over your U.S. place of residence (i.e. my U.S. domicile is in Texas, therefore, I'd file with the Texas Service Center), correct?

If the above is accurate, then where I get a bit confused is the following: Does the USC need to be physically present in the United States in order to petition and file the aforementioned paperwork? Can the USC be resident in their SO's home country while doing all of this?

If the USC CAN be resident in their SO's home country, then very little has really changed with DCF. The most basic part of DCF that has changed then is that the I-130 needs to be sent to the United States (it seems, in most -- if not all -- cases) instead of a U.S. embassy or consulate within the SO's home country.

If the USC CANNOT be resident in their SO's home country, then that dramatically changes the scope of DCF and practically, if not completely, eliminates it.

So if someone could answer my question ("Can the USC be resident in their SO's home country while petitioning and filing the forms"), I'd really appreciate it. Thanks.

Okay, so I am a US citizen. I filed the I130 DCF in my husband's country (Albania). So, will the I-130 (which WAS approved) now go to Vienna (the USCIS office with jurisdiction over Albania or will it come to the states because that's where I, the petitioner live????

[marcycat 0]

)

Okay, so I am a US citizen. I filed the I130 DCF in my husband's country (Albania). So, will the I-130 (which WAS approved) now go to Vienna (the USCIS office with jurisdiction over Albania or will it come to the states because that's where I, the petitioner live????

Avoci - The Paris consulate told my husband that since I reside in the US, our file will be sent to the US. (If I was residing in Paris, our file would go to Rome)

[avoci 0]

)

Okay, so I am a US citizen. I filed the I130 DCF in my husband's country (Albania). So, will the I-130 (which WAS approved) now go to Vienna (the USCIS office with jurisdiction over Albania or will it come to the states because that's where I, the petitioner live????

Avoci - The Paris consulate told my husband that since I reside in the US, our file will be sent to the US. (If I was residing in Paris, our file would go to Rome)

[/quote

Do you think it makes a differnce (time wise) where it goes??? When do you think I will know for sure? When do u think the files will be sent to the US? In your opinion, how much longer do u think it will make this (already very long) process? Do we have ANY other options?????

Thanks

[meauxna 15]

So if someone could answer my question ("Can the USC be resident in their SO's home country while petitioning and filing the forms"), I'd really appreciate it. Thanks.

DPX, I would modify your summary like this:

The USC needs to petition and file the I-130 with the USCIS office that has jurisdiction over your U.S. place of residence (i.e. my U.S. domicile residence is in Texas, therefore, I'd file with the Texas Service Center), correct?

Correct. Or, see the filing instructions for the overseas USCIS Field Office serving your spouse's country. I do not *think* any of them will let you file abroad with not living there, but that may be temporary. SOME Field Offices did accept non-resident petitions in the past.

If the above is accurate, then where I get a bit confused is the following: Does the USC need to be physically present in the United States in order to petition and file the aforementioned paperwork? Can the USC be resident in their SO's home country while doing all of this?

Again, it depends on the type of residency permit you have for the foreign country, and/or how long you have lived there. See the homepage of the Field Office serving your spouse's country.

It IS possible to mail an I-130 from a foreign country to the US Service Center. People in the UK do it all the time.

If the USC CAN be resident in their SO's home country, then very little has really changed with DCF. The most basic part of DCF that has changed then is that the I-130 needs to be sent to the United States (it seems, in most -- if not all -- cases) instead of a U.S. embassy or consulate within the SO's home country.

Very little changes? A LOT changes. By filing in the US, the petition must now go through the NVC, a several month process of pre-visa-application hoo ha. Cases filed overseas were able to skip that. They also skipped the 6 month turnaround for a petition approval.

If the USC CANNOT be resident in their SO's home country, then that dramatically changes the scope of DCF and practically, if not completely, eliminates it.

See above.

The answer to your burning question is: Of course the USC can live abroad! Many people choose this route, with the USC living abroad temporarily. The main considerations are your US employment and any other issues you'd face in completing the I-864.

[meauxna 15]

Amy, you are already in the shortest line possible. No one knows where your petition will be sent. Either Rome, Vienna, or the US. No one knows the answers to your timeline questions, including the USCIS workers or the consular staff. Did you read the memo from Sec'y of State Rice posted above?

Your other options are to immediately file an I-130 in the US Service Center and hope that it doesn't mess up your current case or move, as you discussed yesterday.

Your I-130 has to be re-adjudicated, by law, and no one knows how long it will take, or where it will happen. I have been researching this through many avenues for two days now and this is all the information there is.

[jpaula 20]

What is the date of Rice's memo?

[jpaula 20]

This from my Congressman's office:

> This information comes from a State Department telegram dated January

> 7, 2007 and the relevant text, word for word, is as follows:

>

> "Any case involving an I-130 approved at post after July 27, 2006

> which is still within post's control must be returned to USCIS ... We

> have requested guidance from USCIS on the effect of the Adam Walsh Act

> on I-130 and I-129F

> petitions that were approved prior to its effective date of July 27, 2006.

> At present posts should consider these petitions valid."

[meauxna 15]

jpaula, AILA shows the Rice cable dated 1/25/07 on their site: http://www.aila.org/content/default.aspx?docid=8444

State does not yet have it on their cable/telegram page.

personal speculation:

Anyone who watched the IMBRA implementation should know to not expect to fight this. We have no "rights" to force them into accepting even already-approved petitions.

[atp 0]

jpaula, AILA shows the Rice cable dated 1/25/07 on their site: http://www.aila.org/content/default.aspx?docid=8444

State does not yet have it on their cable/telegram page.

personal speculation:

Anyone who watched the IMBRA implementation should know to not expect to fight this. We have no "rights" to force them into accepting even already-approved petitions.

As it has happened before in the US, the lawmaker/legislator did not think through the whole ramifications, or maybe he DID but deemed that the Law and its benefits were worth the price. We USCs end up having to bite the bullet and deal with another layer of red tape into what is a slow and disrespectful process.

It shouldn't be this difficult to be able to marry a foreigner and be united with her in your home country.

[jpaula 20]

Rice's memo still seems to make a distinction between two sets of cases.

There are those I-130s that have been "accepted":

"In any case in which a post has already accepted an I-130 from a petitioner but has not yet issued a visa, post must forward the petition to the appropriate USCIS overseas office as "not clearly approvable."

Then there are those who have been "previously approved":

"We are working with USCIS and will provide subsequent guidance on processing I-600 petitions and previously approved I-130 petitions."

Which leads me to believe that they have not yet decided what to do with the approved I-130s, making the Jan 7 memo regarding these to be the latest word...for now.

Any objecting opinions?

[meauxna 15]

As it has happened before in the US, the lawmaker/legislator did not think through the whole ramifications, or maybe he DID but deemed that the Law and its benefits were worth the price. We USCs end up having to bite the bullet and deal with another layer of red tape into what is a slow and disrespectful process.

It shouldn't be this difficult to be able to marry a foreigner and be united with her in your home country.

Be realistic now, how could legislators anticipate this fairly minimal ramification that affects a VERY small minority of USCs?

We are not entitled to this method of filing. No one here is being penalized. Everyone here still has the same option that everyone else on VJ has, namely to get in the same US petitioning line as everyone else. No one here is being put through extraordinary difficulty. I understand that it is confusing, and changes plans, but won't it help to maintain some perspective?

Bear in mind that your VJ comrades are waiting in the line that you think is unacceptable.

PS: not disagreeing with you about how it 'should' be.

[marcycat 0]

As it has happened before in the US, the lawmaker/legislator did not think through the whole ramifications, or maybe he

Bear in mind that your VJ comrades are waiting in the line that you think is unacceptable.

PS: not disagreeing with you about how it 'should' be.

No, we were waiting in a different line. I would have gotten in the USCIS line back in October if the govt hadn't presented DCF as an option. Now I might be at the back of that line. And the reason the law gets implemented 6 months after it passes is to give the govt time to figure stuff out and not create chaos.

[David A. 0]

As it has happened before in the US, the lawmaker/legislator did not think through the whole ramifications, or maybe he DID but deemed that the Law and its benefits were worth the price. We USCs end up having to bite the bullet and deal with another layer of red tape into what is a slow and disrespectful process.

It shouldn't be this difficult to be able to marry a foreigner and be united with her in your home country.

Be realistic now, how could legislators anticipate this fairly minimal ramification that affects a VERY small minority of USCs?

We are not entitled to this method of filing. No one here is being penalized. Everyone here still has the same option that everyone else on VJ has, namely to get in the same US petitioning line as everyone else. No one here is being put through extraordinary difficulty. I understand that it is confusing, and changes plans, but won't it help to maintain some perspective?

Bear in mind that your VJ comrades are waiting in the line that you think is unacceptable.

PS: not disagreeing with you about how it 'should' be.

I agree with Mo. In my own selfish ways I wished things worked out for me because DCF was the quickest route and I was only 4-5 days away from the visa. The advantage has been taken away, but not the fact that you can STILL petition for your spouse or relative. It's not totally over for us.

[John and Sonya 0]

As it has happened before in the US, the lawmaker/legislator did not think through the whole ramifications, or maybe he DID but deemed that the Law and its benefits were worth the price. We USCs end up having to bite the bullet and deal with another layer of red tape into what is a slow and disrespectful process.

It shouldn't be this difficult to be able to marry a foreigner and be united with her in your home country.

Be realistic now, how could legislators anticipate this fairly minimal ramification that affects a VERY small minority of USCs?

We are not entitled to this method of filing. No one here is being penalized. Everyone here still has the same option that everyone else on VJ has, namely to get in the same US petitioning line as everyone else. No one here is being put through extraordinary difficulty. I understand that it is confusing, and changes plans, but won't it help to maintain some perspective?

Bear in mind that your VJ comrades are waiting in the line that you think is unacceptable.

PS: not disagreeing with you about how it 'should' be.

You are kidding me with this comment??? We applied in a whole different process. And yes it was quicker, but we did follow proper application procedures. And another thing, you are missing the biggest point of the thousand posts on here. WE ALL HAD APPOINTMENTS AND PAID FOR OUR TRANSPORTATION TO THE EMBASSYS,HOTELS, AND OTHER COSTS. AND FROM THE 23RD TO TODAY, NONE OF US WERE EVEN NOTIFIED THAT OUR APPOINTMENTS ARE CANCELLED! My wife along with 100's of others, were sitting in line, all paper work approved, then told, sorry, here is your money, we cant process your visa, go home. Then they tell us that they dont know what is going to happen to our petitions or how long. So dont even compare. You are on the wrong thread. This thread is to get info on what is going on, because like many, we got nothing from the embassy's, USCIS nor State Department for two days. Thanks to the people on here, at least I know whats going on.

So thanks for your thought. I agree its a wonderful law, but they did not think about the ratifications and should of grandfathered it.