Tag Archive for: Delays

Cyrus Mehta

The Legal Basis Underpinning the New Automatic Extension of Work Authorization for H-4, L-2 and E-2 Spouses, and Why It Must Still Be Challenged

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Cyrus D. Mehta

The USCIS has been processing employment authorization requests for H-4 and L-2  spouses so slowly that they have been rendered virtually useless. By the time the applicant receives the employment authorization document (EAD) after 10 months, the job offer no longer exists. The experience is even more harrowing when the spouse begins working under the first EAD and has to apply for a renewal. By the time the renewal EAD comes through, the spouse would have been forced to stop working after the prior EAD expired and often loses her job. Most H-4  spouses who have availed of the EAD are mainly women and  spouses of Indian born H-1B visa holders who are caught in the crushing India employment-based backlogs under the second and third preferences.

Following a recent settlement in Shergill v. Mayorkas,  USCIS announced on November 12, 2021, that certain H-4, E, or L dependent spouses will qualify for an automatic extension provided under 8 CFR § 274a.13(d) if certain conditions are met.

The new policy provides that certain H-4, E or L dependent spouses qualify for automatic extension of their existing employment authorization and accompanying EAD if they properly file application to renew their H-4, E or L-based EAD expires, and they have an unexpired I-94 showing their status as an H-4, E or L nonimmigrant. The policy further provides that E and L dependent spouses are employment authorized incident to their status and therefore they are no longer required to file Form I-765 for an EAD but may still do so if they choose to request an EAD. Still, the E and L dependent spouse may only qualify for an automatic extension if they have an unexpired valid E-2 or L-2 status.

Accordingly, a document combination to include an unexpired Form I-94, Form I-797C (Notice of Action) showing a timely filed employment authorization document (EAD) renewal application, and facially expired EAD may be acceptable to evidence unexpired work authorization for employment eligibility verification (Form I-9) purposes.

Although this new policy is a positive step, as a practical matter, many H-4 spouses may not be able to avail of the automatic extension if they are unable to demonstrate an H-4 status beyond the expiration of their existing EAD. Most H-4 statuses and EAD end on the same date.

Even if an H-1B extension is filed on behalf of the principal spouse under premium processing six months before the existing H-1B status expires, the USCIS no longer processes the extension of the H-4 status in an expeditious manner. Thus, even if the H-1B status is renewed under premium processing within 15 days for an additional 3 years,  the H-4 status continues to remain pending and may or may not get approved before the expiration of the current H-4 status. If the H-4 status is not renewed prior to the expiration of the current H-4 status, the spouse will not be able to avail of the auto extension under the new policy.

It would thus behoove the USCIS to courtesy premium  process the H-4 status extension request along with the H-1B premium request. This used to be done prior to the imposition by the Trump administration of a mandatory biometrics appointment for an extension request filed by the spouse.  As a result of the new biometric requirement, the H-4 spouse’s extension request was  no longer processed along with the H-1B premium request.  Although the biometric requirement has been eliminated for H-4 spouse extension requests, the USCIS continues to process these cases at a snail’s pace. It is difficult to understand why the USCIS is unable to process the H-4 request along with the H-1B premium request at the same time as was done before the imposition of the biometric requirement.

Another way to get around the limitation of having H-4 status beyond the EAD is for the H-4 spouse to travel overseas and return with an I-94 that would have the same validity as the principal spouse’s H-1B status. However, if the H-4  spouse needs to obtain a new visa stamp, it is difficult to obtain consular appointments timely as a result of Covid-19.

Another work around would be for the H-4 spouse to go to Canada for less than 30 days and be readmitted under  automatic visa revalidation provided for trips to Canada or Mexico that are less than 30 days. The difficulty with this strategy, though, is that the CBP often admits the H-4 spouse under the same period of the existing status instead of admitting the spouse for an extended period that  would be coterminous with the H-1B spouse’s new status.

L-2 and E-2 spouses are in a better situation that H-4 spouses. INA 214(c)(2)(E) provides  statutory authority for dependent spouses of L nonimmigrants to be granted work authorization. INA 214(c)(2) provides similar work authorization for dependent spouses. Notwithstanding this statutory authorization that took effect on January 16, 2002 providing for work authorization incident to status,  USCIS was still insisting that L-2 and EAD spouses obtain an EAD through a policy memo authored by William Yates dated February 22, 2002, “Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Authorization for E and L Nonimmigrant Souses, and for Determinations on the Requisite Employment Abroad for L Blanket Petitions.” (Yates Memo).  The November 12, 2021 guidance has now rescinded the Yates Memo.

As a result of being recognized to be work authorized incident to status, L-2 and E-2 spouses will be able to work when their L-2 or E-2 status is extended. CBP will notate the I-94 to distinguish the L-2 or E-2 spouse from E and L children. Unlike the H-4 spouse who will need to apply for an EAD based on status that already extends beyond the EAD extension request, the L-2 spouse will be able to work as soon as the E-2 or L-2 status is granted. Similarly, the spouse who is admitted after travelling to the US in L-2 or E-2 spouse will also be issued an I-94 with a similar notation from the CBP and be work authorized after admission in that status. However, like with the H-4 spouse, when the L-2 spouse applies for an extension of that status, there will be no basis for an automatic extension of  work authorization until the L-2 status is approved.

On November 18, 2016, DHS promulgated the automatic extension of EAD regulation at 8 CFR 274a.13(d), which took effect on January 17, 2017. 8 CFR 274a.13(d) provides the legal underpinning for November 12, 2021 policy.  An applicant is eligible for automatic extension if the EAD renewal is timely filed and based on the same employment authorization category as shown on the face of the expiring EAD. See 8 CFR 274a.13(d)(1)(i) and (ii). Under 8 CFR 274a.13(d)(1)(iii) automatic extension may also apply where the EAD renewal application is “[b]ased on a class of aliens whose eligibility to apply for employment authorization continues notwithstanding expiration of the Employment Authorization Document and is based on an employment authorization category that does not require adjudication of an underlying application or petition before  adjudication of the renewal application, …. As may be announced on the USICS Web site.”

The page on the USCIS Website listed 15 categories for automatic extension of their employment authorization or EAD. However, the November 12, 2021 USCIS Policy Memo acknowledges that E and L as well as H-4 spouses were missing from this list, as follows:

These broad categories were not included because at the time the automatic extension authority was established in 2016, USCIS determined that these applicants are in a category that first requires adjudication of an underlying application before their EAD renewal application can be adjudicated.[citation omitted]. While that is a permissible interpretation of the regulation, upon further review and consideration, USCIS recognizes that this interpretation does not contemplate the situation where the E, L, and H4 dependent spouse has already been granted a new period of authorized stay and such individual is eligible for employment authorization past the expiration of his or her EAD while the renewal Form I-765 application is pending. Under this scenario, the possible risk the provision at 8 CFR 274a.13(d)(1)(iii) sought to avoid—the risk that a Form I-765 renewal applicant’s eligibility for employment authorization will lapse during the automatic extension period—is not present. As such, it is reasonable for USCIS to expand the list of categories eligible to receive automatic EAD extensions to include this narrowly defined category of E, L, and H-4 dependent spouses to mitigate the risk of experiencing gaps in employment authorization and documentation while their renewal Form I-765 is pending, in light of their continued employment eligibility past the expiration date of their EAD.

The USCIS believes that this change in interpretation is permissible under 8 CFR 274a.13(d)(1)(iii) that speaks broadly of “class” and “category.” As these terms are undefined and thus ambiguous, under the broad deference courts have granted to a government agency to interpret its own ambiguous regulation, see Auer v. Robbins, 519 US 452 (1997) as modified by Kisor v. Wilke, 588 US ___ (2019), USCIS believes it has the discretion to interpret these terms and tailor designated categories to emerging circumstances and to fulfill the primary purpose of the EAD auto-extension.

While one agrees that USCIS does have discretion to reinterpret 8 CFR 274a.13(d)(1(iii) to include auto extensions for H-4, L-2 and E-2 spouses, this is not the most satisfactory outcome and should be challenging the USCIS to do more.

For starters, if the USCIS processes extension requests of H-4, L-2 and E-2 statuses more rapidly, this problem will be resolved. It should not be taking upwards of 6 months to process such status extension requests when the biometric requirement has been done away with. The Edakunni v. Mayorkas lawsuit seeks to force USCIS to speed up processing times.   USCIS can include courtesy premium processing of H-4, L-2 and E-2 status request  applications that  are part of a request for premium processing of the principal spouse’s H-1B, L-1 or E petition. Also do not forget that Congress in HR 8837 has authorized premium processing of many more petitions and applications, including applications to change or extend status as well as applications for employment authorization.

More important, the USCIS need not be cabined by the restrictive language in 8 CFR 274a.13(d)(1)(iii) which provides for automatic extension where the EAD renewal application is “[b]ased on a class of aliens whose eligibility to apply for employment authorization continues notwithstanding expiration of the Employment Authorization Document and is based on an employment authorization category that does not require adjudication of an underlying application or petition before  adjudication of the renewal application.” While the USCIS has threaded the difficult needle in its November 12, 2021 policy by justifying that 8 CFR 274a.13(d)(1)(iii) is nevertheless applicable if there is already an underlying status, the USCIS has authority under the INA to craft a whole new regulation that does not depend on automatic extension only if there is an underlying L-2, H-4 or E-2 status.

Furthermore, 8 CFR 274a.13(d)(1)(iii) can potentially be challenged as being inconsistent with INA 214(c)(2)(E) and INA 214(e)(2) that provide work authorization incident to status to L-2 and E-2 spouses. Nowhere does it  state in these INA provisions that a spouse who has been admitted in L-2 or E-2 status  must remain in status in order to avail of an automatic extension of work authorization when applying for an extension of that status. Although there is not direct INA reference for H-4 authorization incident to status, the H-4 EAD rule is based on the general authority given to the DHS under INA 103(1) and 274A(h)(3)  that allows it to grant work authorization to any noncitizen. Even under these general provisions there is no requirement that there must be an underlying nonimmigrant status in order to avail of automatic work authorization extension. Even if INA 214(c)(2)(E) and INA 214(e)(2) can be read to mean that a spouse is precluded from availing of an auto extension once the status has expired, 8 CFR 274a.13(d)(1)(iii) might still be inconsistent with the general authority to provide work authorization under INA 274A(h)(3).

Under its authority under INA 274A(h)(3),  DHS may wish to promulgate a regulation similar to 8 CFR 274a.12(b)(20) that provides for an automatic extension of work authorization for 240 days when a petition to extend nonimmigrant status has been timely filed on behalf of a nonimmigrant through the same employer prior to the status expiring. The 240 day automatic extension will be denied if the petition requesting the extension is denied prior to the 240 days.  The spouse should also be able to avail of a similar period of 240 days of automatic work authorization even if the underlying H-4, L-2 or E-2 status has expired so long as the request was made before the status had expired.  If the underlying request for extension of status is denied prior to the 240 days, the automatic work authorization will be denied.

While the new H-4, L-2 and E-2 work authorization policy of November 12, 2021 is a step in the right direction, it should  not become the permanent policy of the USCIS as it is far from perfect. As long as the USCIS delays in the processing of routine requests for extension of status and work authorization continue to persist, the regulations need to be changed in order to allow spouses to continue working regardless of whether there is an underlying nonimmigrant status or not.

 

Cyrus Mehta

Coping with Delays Facing H-4 and L-2 Spouses

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By Cyrus D. Mehta & Isabel Rajabzadeh*

 In March 2019, the Trump administration implemented a new biometrics requirement for some employment-based and nonimmigrant dependents. H-4 and L-2 dependents must complete biometrics each time an extension of status is filed on Form I-539. This superfluous mandate, paired with the already backlogged queue due to Covid-19 processing delays, has resulted in dependent extensions being processed months behind their principal applicants. Since most of the people impacted by the delays are H-4 spouses, we refer more to them than L-2s although both face similar issues.

Spousal processing times are left estranged with some H-4 extensions taking over a year while the H-1B option of 15-calendar-day premium processing remains in full effect. To shed light on how absurd these delays truly are, it is crucial to note that most dependents have at one time or another provided biometrics in the past to the U.S. Citizenship and Immigration Services (USCIS) for an unrelated immigration benefit, or during visa consular processing. Nonetheless, spouses are losing their work authorization and are also inhibited from travelling abroad while their H-4 extension requests are pending because of these illogical delays.

There is no need for this Trump era senseless H-4 and L-2 biometrics requirement to remain as it was part of the prior administration’s effort to thwart legal immigration. The Biden administration should not only remove this impediment, but it should also implement premium processing of H-4 extensions and work authorization (EAD) requests. We refer you to a prior blog, “Work Authorization for H-4 Spouses: The Experience Thus Far” that discusses the eligible requirement for EADs. Since Congress authorized additional premium processing last year, which the USCIS has not implemented yet, we urge the agency to act now.

This processing limbo has caused much confusion among the nonimmigrant population. As litigation ensues over the delays around the country, we have outlined some of our most asked H-4 dependent related questions below.

Traveling Abroad While H-4/L-2 Is Pending and H-1B/L-1 principal has a valid I-94

While consular posts continue to operate at a limited capacity, it is not always ideal to travel outside of the United States in order to receive an H-4 visa stamp. Still, we provide some guidance below when travel opportunities arise.

The H-4 extension request can remain pending even if the spouse leaves the United States. The same is also true with respect to the request for an employment authorization document (EAD) through the filing of the I-765. However, if an H-4 spouse leaves the United States before doing his/her biometrics, and the USCIS issues a biometrics appointment, the spouse can seek postponement and complete the biometrics when he/she returns to the United States.

Travel during an extension request should be distinguished from travel during a request for change of status. If one departs the United States while the change of status to H-4 is pending, the underlying I-539 application will get denied.

Whether the H-4 is processed abroad or by the USCIS, it is always important to review the expiration of the I-94. The I-94 is attached to H-4 approval notices (I-797) when H-4s are approved by the USCIS. If the H-4 spouse either obtains their H-4 visa stamp abroad or travels outside of the United States, the new I-94 will appear on the Customs and Border Protection (CBP) I-94 portal, which should always be reviewed upon entering the United States.

Please remember that while visas allow a person to travel to a port of entry, the I-94 grants the actual status and permits the person to stay in the United States. The CBP has made mistakes on I-94s in the past, which is why reviewing each I-94 is even more critical. If the CBP made a mistake, correcting the I-94 may be as simple as contacting the CBP and requesting the correction. The CBP may also issue an I-94 date that matches the validity period of the underlying passport. Therefore, it is important to ensure that the passport is renewed prior to travel abroad in order to avoid a mismatch in the I-94 validity date and the H-4 visa, or the H-1B approval notice.

Lastly, if the H-4 spouse’s I-94 does not match the visa expiry date, it is important to plan to file an I-539 extension request in advance of the I-94 expiration. Alternatively, the spouse can travel abroad and be admitted.

 No Status while H-4 Is Pending vs. Accrual of Unlawful Status

Most importantly, H-4 spouses must not accrue unlawful status in the United States. H-4 spouses have been falling out of status because of the long processing delays, however, H-4 spouses do not begin to accrue unlawful status as long as the H-4 extension (form I-539) was filed before the H-4 status (the I-94) expiration date. During the pendency of the I-539 request, the applicant is authorized to remain in the United States even if they do not have the underlying H-4 status. Once the extension request is approved, the spouse’s H-4 status is restored.  If, for whatever reason, the H-4 extension is denied, the H-4 spouse will start accruing unlawful presence for the purpose of triggering the 3 or 10 year bars under INA 212(a)(9)(B)(i)(I) and (II). If the spouse has been unlawfully present for more than 180 days, they will face the three-year bar once they depart the United States. Therefore, it is incredibly important to not accrue unlawful status.

If the spouse wants to file a motion to reopen or reconsider upon a denial, the spouse must consider leaving within 180 days of the denial if the case has not been reopened. He/she would risk facing a 3 or 10 year bar if they leave after 180 days, assuming the motion is not granted.

Conclusion

Although it is understandable that the Biden administration has been left with a big backlog of H-4 and L-2 cases from the Trump administration, the Biden administration can alleviate the backlog by immediately lifting the biometrics requirement whenever an I-539 is filed. This would be a good first step as the H-4 extension will get processed along with the H-1B extension under premium processing. Then, premium processing should be introduced for EAD processing. The additional premium fees that applicants will gladly pay can be used to add more resources to expedite the processing of cases. Of course, all this is still a band-aid since the ultimate solution is to alleviate the backlogs in the employment-based preferences by adding more visa numbers as well as exempting the counting of certain immigrants such as dependents, which is part of Biden’s US Citizenship Act of 2021. Even if the prospects of the passage of the entire bill are unlikely, the provisions that will alleviate the backlogs in the family and employment visa system must be pushed along with helping Dreamers and TPS applicants in the American Dream and Promise Act of 2021.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice.)

* Isabel Rajabzadeh is an Associate at Cyrus D. Mehta & Partners PLLC and is admitted to practice law in New York.

Cyrus Mehta

Processing of I-130 Petitions Speeds Up For An Expanding Group of Us Citizens

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In Delays for Overseas Spouses of US Citizens Seeking Green Cards I reported about the slowdown in the processing of I-130 petitions filed by US citizens on behalf of immediate relatives, such as spouses, minor children and parents, who are outside the United States. As a result of widespread concern about the delays, the USCIS seems to have reacted positively and sent the following e mail to its stakeholders:

From: U.S. Citizenship and Immigration Services [mailto:uscis@public.govdelivery.com]
Sent: Wednesday, November 20, 2013 3:38 PM
Subject: USCIS Message: Update on the processing times of Form I-130s filed by U.S. citizens for their eligible immediate relatives

Dear Stakeholder,

U.S. Citizenship and Immigration Services (USCIS) has received communications from the public expressing concerns regarding extended processing times for Form I-130, Petition for Alien Relative, filed by U.S. citizens for their eligible immediate relatives. USCIS provides information below in response to the concerns expressed.

USCIS is ever-mindful of the need to process a U.S. citizen’s immediate relative Form I-130 carefully and expeditiously. The need is defined by the immigration system’s goal of preserving family unity. It is for this fundamental reason that USCIS has been focused on addressing delays in the processing of these Forms I-130 for several months.
Through concerted efforts, USCIS is now adjudicating U.S. citizens’ immediate relative Forms I-130 filed as early as February 2013. This is a significant step forward, as previously published guidance reflected the processing of these Forms I-130 filed in October 2012. Furthermore, USCIS expects the processing of these Forms I-130 to be increasingly timely in the ensuing weeks, culminating in the return to an average processing time of five months for these Forms I-130 by May 2014.

USCIS has focused on these Forms I-130 for the very reason that affected members of the public have expressed their concerns; the importance of family unity. Last month, in an effort to expedite the adjudication of these cases, USCIS began transferring stand-alone Forms I-130 filed by U.S. citizens for their immediate relatives from USCIS’s National Benefits Center to its Nebraska, Texas, and California Service Centers. This shift improves USCIS’s ability to adjudicate the cases in a timely manner.

When You Receive a Notice of Transfer of Your Case

If your case was transferred, USCIS will send you a notice listing the transfer date and where your case will be processed. Your original receipt number will not change and this will not further delay the processing of your case. USCIS will take action on your case within 60 days of the transfer date listed in your notice.

How to Track the Status of Your Case

We have recently updated the USCIS website at www.uscis.gov<http://www.uscis.gov/> with processing times for Form I-130 cases filed by U.S. citizens for their eligible immediate relatives. Please check the processing times<https://egov.uscis.gov/cris/processTimesDisplay.do> for your petition before inquiring about your case. If your case is transferred to another USCIS office, you should refer to the processing times for the office that has received your case.

You can check the status of your case at www.uscis.gov<http://www.uscis.gov/> by entering your receipt number in the “Check Status<https://egov.uscis.gov/cris/Dashboard/CaseStatus.do>” field. Additionally, you can sign up to receive automatic case status updates<https://egov.uscis.gov/cris/jsps/selectusertype.jsp;jsessionid=bacEczm0-YrdshKqQwGgu> by email as your case is processed. If you have not received a decision on your case within the published processing time, you may submit an inquiry using e-Request<https://egov.uscis.gov/e-request/Case.do> or contact the National Customer Service Center (NCSC) at 1-800-375-5283. For TDD hearing impaired assistance, please call 1-800-767-1833. When making any case status inquiries, you should reference your original receipt number and indicate that your case was transferred to a new location.

If you have filed a Form I-130 and you receive a request for evidence or any other type of communication from USCIS, please read the notice carefully to ensure that you respond to the same service center that sent you the notice.

If you move while your case is pending, you can change your address on the USCIS website<https://egov.uscis.gov/crisgwi/go?action=coa> or contact the NCSC so that USCIS can notify you of any further action on your case. It is important that you notify USCIS of any change of address as soon as possible after moving.

We appreciate the concerns that members of the public have expressed on this important subject. We are mindful of those concerns and are addressing them with great diligence.

Kind Regards,

USCIS Public Engagement Division

It is indeed welcome news that USCIS is endeavoring to speed up the processing of I-130 petitions of US citizens, and restore the original processing times of five months or less. While the granting of immigration benefits is contentious in today’s political environment, seldom dispute the ability of a US citizen to swiftly bring into this country a foreign national whom he or she has married overseas. The number of US citizens who can file I-130 petitions on behalf of spouses has recently expanded after Section 3 of the Defense of Marriage Act was declared unconstitutional in United States v. Windsor, thus enabling US citizens to  also file I-130 petitions on behalf of same sex spouses. These spouses were unjustly deprived of a benefit for years on end as a result of an unconstitutional statute, and they should not be required to wait that much longer for the I-130 petition to get approved.

As an aside, the class of US citizens who can file I-130 petitions on behalf of overseas relatives may be expanding to even dead petitioners. I heard today that attorney Michael Piston was able to obtain an approval for the unmarried son of a U.S. citizen mother who died after her I-130 petition filed on  his behalf was approved. The son was outside the U.S. and could not take advantage of INA section 204(l), which allows beneficiaries to apply for a green card if they were in  the US at the time of the petitioner’s death. Humanitarian reinstatement was also denied. Mr. Piston, who is widely admired for successfully pushing the envelope on interpretations of our immigration laws, filed suit in the U.S. District Court for the Central District of California contending that the unmarried son of a U.S. citizen remained the unmarried son of a U.S. citizen even after the citizen died. The USCIS settled the law suit and approved the I-130 petition.  Such a law suit could not have been successful outside the court in California where it was initiated because the Ninth Circuit in Federiso v. Holder, 605 F.3d 695 (9th Cir. 2010), held in the context of the INA section 212(a)(1)(H)(I)) waiver that the “spouse, parent, son, or daughter of a citizen of the United States” does not mean that they have to be the spouse, parent, son or daughter of a “living citizen of the United States.” This ruling, which currently is limited to California and other states that come within the ambit of the Ninth Circuit, could potentially be extended to beneficiaries of I-130 petitions too where the citizen has died, and theoretically allow the estates of deceased US citizens to file I-130 petitions on behalf of qualifying relatives who are overseas.

In any event, it is heartening to know that the USCIS heard the widespread concerns of “living” US citizens who justifiably want to unite with their loves ones as quickly as possible. It is hoped that the USCIS could also respond to the concerns of other stakeholders, such as US companies, who often have a hard time transferring their specialized knowledge employees on L-1B visas into the US as a result of unreasonable denials. Our immigration laws have been designed to promote family unity as well as promote economic well-being, and the USCIS would clearly be benefitting the national interests of the country it yielded to the  concerns of all legitimate stakeholders who depend on the fair and expeditious processing of immigration benefits applications.

Cyrus Mehta

DELAYS FOR OVERSEAS SPOUSES OF US CITIZENS SEEKING GREEN CARDS

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One of the most fundamental benefits under immigration law is for the ability of a US citizen to quickly sponsor a foreign national spouse for a green card.  While the granting of immigration benefits is contentious in today’s political environment, no one has disputed, even immigration restrictionists, that a US citizen cannot swiftly bring into this country a foreign national whom he or she has married overseas. Under the Immigration and Nationality Act, the spouse of a US citizen qualifies as an immediate relative, and falls outside the quotas that other relatives of US citizens may be subject to such as adult sons and daughters or siblings. Minor children and parents of US citizens also qualify as immediate relatives.

The Form I-130 petition is used to sponsor a spouse, minor child or parent of a US citizen who is outside the US. In the recent past, such an I-130 petition filed with the United States Immigration and Citizenship Services on behalf of an immediate relative got approved in about 3-4 months. The case was then sent to the National Visa Center, a clearing house for the consular posts of the Department of State. Once the petitioner submitted the required documents to the NVC, the file was dispatched to the consular post and an appointment was quickly scheduled. The entire process generally took about six months or a little over.

More recently, I-130 petitions filed on behalf of spouses and other immediate relatives are reportedly taking much longer. This author has heard that I-130s filed in January or February 2013 have still not been approved. The Vermont Service Center states that I-130 petitions received on October 22, 2012 for immediate relatives are being adjudicated presently. The California Service Center does not indicate any processing time for a similar I-130 petition.  This is quite frankly a shocking state of affairs. The reason for the delay is that the I-130s are being shunted to local USCIS offices for processing rather than being processed at the California or Vermont Service Centers, which is how they were processed previously. Still, this is no excuse for the USCIS to cause so much delay. It makes no sense to allow spouses of US citizen to wait for so long outside the US before they can join their loved one in the US. The USCIS is capable of far greater efficiency as it demonstrated when it more quickly adjudicated thousands upon thousands of applications under the Deferred Action for Childhood Arrivals (DACA) program.

While the filing of a concurrent I-130 petition with an I-485 application for adjustment of status may process more quickly, the foreign spouse has to be in the US in order to adjust status. If a spouse enters the US on a nonimmigrant visa, such as a tourist visa, with the intention to adjust status, such an I-485 can be denied if the spouse had a preconceived intent to apply for permanent residence while entering the country as a tourist. If, on the other hand, the spouse came genuinely as a tourist, but changed his or her mind after arriving in the US, then it can be demonstrated that there was no preconceived intent, or worse, fraud or misrepresentation with respect to the purpose of entering the US on a tourist visa.  Of course, if the spouse enters on a nonimmigrant visa, such as an H-1B or L visa, which allows for dual intent, then the spouse’s intent to apply for a permanent immigrant benefit is not an issue. The number of people on H or L visas who become spouses of US citizens is relatively few, though, and many people are unable to apply for a tourist visa to even visit the US temporarily to meet their spouses while the I-130 petition remains pending. People who are nationals of Visa Waiver countries can visit the US for 90 days without applying for a visa, but they too may risk being questioned about their intent at the port of entry.

The filing of an I-130 petition for consular processing, when the spouse is based overseas, is thus the legally appropriate method to apply. The USCIS should not discourage this process by inordinately delaying the approval of an I-130 petition, and thus encourage people to circumvent the process by coming on tourist visas, or other nonimmigrant visas that do not allow for dual intent, with the intent to apply for adjustment of status. Moreover, it is worth noting that with Section 3 of the  Defense of Marriage Act being declared unconstitutional in United States v. Windsor, same sex spouses of US citizen can also for a green card through an I-130 petition. These spouses were unjustly deprived of a benefit for years on end as a result of an unconstitutional statute, and they should not be required to wait that much longer for the I-130 petition to get approved.

In light of long delays in the processing of the I-130 petition, it may be worth considering filing an I-129F petition for a K-3 visa. Congress specifically designed the K-3 visa to allow spouses of US citizens to enter the US if the I-130 processing got delayed. In recent times, K-3 petitions have not been filed due to the fact that I-130 petitions were processed in a few months. It now makes sense to revive the K-3, and to file for it after the I-130 petition has been filed. Both the Vermont and California Service Centers indicate that K-3 processing is taking 5 months. If that time frame is accurate, then the beneficiary of a pending I-130 petition, which is expected to take a year or longer under current processing times, can at least unite with the US citizen spouse through a K-3 visa. Once the spouse is here on a K-3 visa, it is permissible under law to file an I-485 application for adjustment of status. While this is not a perfect solution as it involves two steps, the spouse can at least expect to unite with the US citizen spouse somewhat sooner.

(This article is for informational purposes only and does not constitute legal advice)