Consular Processing

1. Consular Processing CLINIC Convening Colorado Springs, CO May 21, 2009

2. Speakers • Kristina Karpinski, CLINIC • Peggy Gleason, CLINIC • Guest Speaker: NVC Director, Lynne P. Skeirik

3. AGENDA • Review of process, documentation issues, DNA testing, preparing clients for consular interviews • common denials, waivers, filing process, permission to reapply, appeals, how to communicate with consulates, CSPA issues at consulates • affidavit of support, derivatives following to join, and consular return of petitions to CIS, revocation

4. Resources • 22 CFR 40-42 • 9 Dept of State, Foreign Affairs Manual • www.travel.state.gov • Consular web sites and visa bulletins • legalnet@state.gov • AILA Visa Processing Guide

5. National Visa Center • Centralizes/administers initial processing • 32 Rochester Ave. • Portsmouth, NH 03801-2909 • (603) 334-0700 • Director Lynne Skeirik, Guest Speaker • Took over initial document review and interview scheduling • Contact at nvcattorney@state.gov

6. Consular Processing • Two ways to become a lawful permanent resident: • Adjustment of Status in US • Consular Processing • Must be admissible under INA 212 (a) • Most commons bars to eligibility • Unlawful presence and permanent bar for unlawful presence and return • Affidavit of support problems • Prior removal • Crimes • Fraud

7. Documentation Problems • Use original primary documents • Check Foreign Affairs Manual for availability of documents

8. If primary documents unavailable: • Secondary evidence • Church records – under seal of church where ceremony took place, shows names of parents and child • School records – letter from school authorities, dates of admission, child’s date and place of birth, names of parents • Census records – name, place and date of birth

9. If Secondary Evidence Unavailable: • Affidavits – written statements sworn and affirmed by at least 2 people • Must have been living at the time of event and have personal knowledge of it • State relationship to petitioner • Describe details of event • FAM – check listing of availability of docs.

10. DNA Testing • Used only where consular officer sees insufficient proof of bona fide relationship • Primary and secondary evidence do not provide sufficient evidence of claimed relationship • “entirely voluntary” • Expensive – $800 per person • Also bone density testing for age • Very common in certain countries: ex. Haiti, Ethiopia, Nigeria, all of West Africa

11. DNA Test Process • DOS gives beneficiary list of accredited laboratories • Beneficiary has DNA sample taken overseas • Petitioner has DNA sample taken in US • Laboratory communicates results directly with Consulate

12. Contesting DNA Request • Only supposed to ask for DNA test where consular officer doubts credibility of primary and secondary evidence • Ask consulate for written explanation of why documents are not sufficient • Make consular officers go through required steps

13. Consular Interview • Applicant appears for interview • Submits medical exam results and original documents if not already filed at NVC • Interview by consular official • Signs DS-230 Part 2 • Application is approved or refused

14. Preparing Clients for Interviews • Counsel family about separation, typical processing times – sign statement of understanding • Oblige client to supply accurate address, phone, email and fax contact while abroad, and same from petitioner in U.S. • Rehearse with client – prepare them for hostile questions and screening on grounds of inadmissibility

15. Interviews at Consulate • Punctual, have well organized documents • Eye contact with interviewer • Don’t volunteer more info than asked • Dress and behave with respect for interviewer • Note name of interviewer • Call/email counsel when leave consulate

16. Next Step • If refused, obtain additional documents or file waivers • One year to file evidence • Seek review by senior consular officer • If approved, six months to enter at port of entry • If approved at border, applicant enters as LPR

17. How to Challenge Denial • Negotiate with Consul – supply further documents on issue • If legal error – request advisory opinion, Ofc of Public Liaison, DOS • legalnet@state.gov • Rm L703, DOS, 2401 E St. NW, Washington, DC 20520 fax 202 663-3899, ph 202 663-1225

18. File a Waiver • I-601 or I-212 • File at CIS office overseas/often in Consulate • INVESTIGATE PROCESS AT PARTICULAR CONSULATE – any special form? Separate waiver filing appointment? CIS on site? Requires USC or LPR spouse or parent Extreme hardship to the qualifying relative Supporting documents key Detailed affidavits, property, community ties, proof of relationships, medical issues, schools, etc.

19. I-601 for Crimes • Some crimes are waivable under 212(h) • Not drugs except 30 g or less marijuana, not murder • Extreme hardship to USC or LPR spouse, parent or child (or 15+ years ago) • Show rehabilitation and remorse as well as qualifying relationship and hardship • Provide certified copies of court dispositions

20. I-212 permission to reapply • For prior removals – and for permanent bar cases ten years after departure • Balance Positive v. negative equities – general humanitarian factors, relatives, and hardship relevant, as are community ties. Negative factors are police or immigration history of violations, bad acts. • Sometimes possible to file in US prior to departure

21. Waivers and I-212 Appeals • File Notice of Appeal within 33 days on form I-290B, with fee of $585 • File at office/consulate that made the decision • Record of proceeding prepared and forwarded to AAO, 20 Massachusetts Av. NW, Rm A3042, Washington, DC 20529 - file brief, new evidence with AAO • Call/email counsel when leave consulate

22. Meeting One-Year Requirement • Must appear for interview within one year of scheduled interview • Submit documents requested at interview w/in one year • After one year consulate sends warning • Request reinstatement due to circumstances beyond control (illness, inability to secure documents) • Case closed, I-130 revoked after two years

23. Communication with Consulates • View consular web site at www.state.gov for names of individuals in Imm. Visa section • Email that officer about difficult case in advance • Cc legalnet@state.gov in problem cases • Some consulates very unresponsive, be insistent, go to supervisory level

24. CSPA cases at Consulates • How to approach IV section about scheduling a child who is covered under CSPA • Format of cover letter • Do CSPA formula in letter with the dates inserted, show coverage • Go to supervisor if fail to heed • Some consulates difficult to convince

25. WHEN IS I-864 REQUIRED? • Affidavit required in almost all family based cases and employment cases where a relative files the worker petition (or owns 5% of business filing petition). • Affidavit not required - file I-864W • Immigrant can be credited with 40 quarters of work (see DOS Cable of February 22, 2002) • Widow/er of USC • Child seeking residence who will become a citizen upon arrival in the US under the Child Citizenship Act of 2000

26. ISSUES FOR INDIVIDUAL CONSULATES • Some consulates insist on a new affidavit and supporting documents if affidavit is more than 6 months old./ Some disregard real estate in home country as asset • Many consulates will ask for IRS generated tax transcripts though they can accept IRS 1040s too • Some insist on updated employment information for sponsor or joint sponsor if close to income cutoff

27. OVERSEAS DERIVATIVES • Only for spouse or children of persons in the preference categories (family or employment). • After principal has adjusted (or at time of filing adjustment) File I-824 with USCIS. • Once I-824 approved – sent to NVC to begin consular processing for derivatives • Some consulates will begin processing upon request of derivative and proof of principal’s status/family relationship.

28. Consular Return of Petitions to CIS • See rules at 9 FAM 42.43 N1(b) • Consulate should review, not readjudicate • Can return petition if fraud or clear error appears due to information obtained at consulate • Returns to NVC • If CIS reaffirms, Consulate should approve

29. Problems • Mrs. D is denied an immigrant visa for unlawful presence and a prior deportation. She is consular processing in Honduras. She has a US citizen husband. What does she need to file? How does she file it? • What can she do if denied the waiver? How?

30. Problems • Mr. X has an immigrant visa interview in Mexico. He has a 3 DUI charges over the last few years. What will happen at interview?

31. Problems • Mrs. B has a consular interview in Honduras. She is denied for unlawful presence, and presents her waiver the same day. The consulate takes her fee, and tells her they will be in touch. She walks away with a form that says Questions on Hardship. What should she do?

32. Problems • Your client has a child following to join his LPR mother in the U.S. She is interviewing for adjustment this week in Baltimore. What should you file at the time of her interview to assure that the child gets an interview at the consulate as soon as possible?

33. Problems • You have a client whose child (age 20) tries to consular process in Trinidad. The medical reveals marijuana use, and the consulate finds him inadmissible as a drug abuser. What can you do?

34. Problems • You have two children of your naturalized US citizen client who you argue are covered by the Child Status Protection Act. You want to process them through the American Consulate in Manila. How do you approach the consulate? What do you do if the consulate ignores you?