Articles Posted in Family Visas

AILA provided a very important update from the State Department, we wish to share with our readers.

The Department of State has issued comprehensive new policy guidance on the use of DNA testing in the visa application process. This new guidance is set forth in a new set of extensive Notes to 9 FAM 42.44.

In this new guidance, the State Department declares DNA technology to be the only acceptable non-documentary method for proving a biological relationship. The preferred specimen collection technique for DNA testing is by buccal (cheek or mouth cavity) swab.

According to the Department, DNA testing is expensive, complex and time consuming and thus should be recommended only if no other credible proof of the claimed relationship exists. Consular officers should treat DNA testing as a last resort: all other possible methods for confirming the existence of a biological relationship must be exhausted before recommending this course of action. Even then, DNA testing may only be recommended, but never required by the consular officer.

Consular officers may recommend DNA testing solely to prove a relationship; they may never recommend DNA testing in an attempt to disprove a relationship. Only DNA test results reporting a 99.5 percent or greater degree of certainty as proof of a biological relationship between a parent and child may be accepted in visa cases.

The Department clarifies that consular officers adjudicating Form I-130 Alien Relative petitions are not authorized to approve the petition if DNA test results are the sole evidence of the claimed biological relationship. Such cases are not “clearly approvable” per the provisions of 9 FAM 42.41 N4.2-3; accordingly, they must be forwarded to USCIS for adjudication. Parenthetically, USCIS is authorized to approve I-130 petitions supported solely on DNA testing.

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Most applicants that are married less than 2 years to a US citizen must file form I-751 to remove the conditions. The Immigration Marriage Fraud Amendments of 1986 (IMFA) contained a requirement to file a Petition for Removal of Condition during the 90-day period preceding the second anniversary of the noncitizen’s acquisition of resident status.

The petition is to be filed jointly by the U.S. citizen or lawful permanent resident spouse and the conditional resident (CR). IMFA also allowed for a waiver of the joint-filing requirement based on specified grounds if the joint petition could not be filed. The IMFA was modified in 1990 (IMMACT90), and broadened the grounds for filing a waiver of the joint-filing requirement.

Currently a conditional resident can obtain a waiver of the joint-filing requirement and can show that he or she qualifies on one of three distinct bases: (1) extreme hardship to the CR if removed; (2) a good-faith marriage that has been terminated (by means of divorce); or (3) a good-faith marriage during which the CR or child suffered battery or extreme cruelty at the hands of the spouse. The CR files the waiver on Form I-751.

US is finally joining the Civilized world as Obama lifts the 22 year long HIV ban on infected visitors coming to our country. Visitors who have HIV would be allowed to travel and immigrate to the United States.

The president signed the Ryan White HIV/AIDS Treatment Extension Act of 2009 at the White House Friday and also spoke of the new rules, which have been under development more more than a year.

The regulations are the final procedural step in ending the ban, and will be published Monday in the Federal Register, to be followed by the standard 60-day waiting period prior to implementation.

The November 2009 Bulletin brings mixed news. The State Department’s Visa Bulletin for November 2009 notes that demand from U.S. Citizenship and Immigration Services offices has far exceeded earlier indications of cases eligible for immediate processing. As a result, the Department said, it has been necessary to hold most of the employment cut-off dates for November, and it is not possible to provide an estimate of future cut-off date movements.

Regarding the employment fourth preference “certain religious workers” category, the Visa Bulletin notes that the non-minister special immigrant program expires on October 30, 2009. All individuals seeking admission as a non-minister special immigrant must be admitted into the U.S. no later than midnight on October 30, 2009.

This Bulletin brings excellent advancement in the family immigration categories, especially in the Family 1st and Family 2A categories and, for Mexico, in the Family 3rd category, what a relief. Mexico advances to 1 May 1992. The Philippines advances one month to 22 October 1991.

USCIS has revised Form I-601, Application for Waiver of Grounds of Inadmissibility to make it easier for applicants to complete. Applicants may now select from a list of grounds of inadmissibility on the form itself and mark all which apply to them in order to request a waiver. This was confusing to many applicants in the past as they were not sure what to type in this section.

In addition to the list, the form includes a section where applicants can describe, in their own words, why they believe they are inadmissible. Again, this is something that was not so clear in the previous version of the form. In the previous edition of Form I-601, information about grounds of inadmissibility could only be found in the form’s instructions.

Please note that USCIS will continue to accept the previous version of the form, dated 10/30/08 Y, through November 20,2009. Beginning November 21, 2009 USCIS will only accept the revised Form I-601, dated 04/06/09 N, and will reject all requests using previous editions of the form. Concern is that Applicants using notarios and other consultants, may be rejected as these non lawyers may not be informed of the new procedures.

The Widow penalty debate has been going on for years. This week the problems of widows have come to an end. The Senate approved a measure on Tuesday that would end what has become known as the “widow penalty” — the government’s practice of annulling foreigners’ applications for permanent residency when their American spouses die before the marriage is two years old.

The measure, which passed 79-19, was contained in a conference report that accompanied an appropriations bill for the Department of Homeland Security. The House of Representatives passed the conference report last week. President Obama is expected to sign the bill into law.

While the foreign spouse of a United States citizen may be eligible for residency under American law, the government has argued that the spouse’s death before the two-year mark ends the marriage, canceling the foreigner’s right to be considered for residency and opening the door to deportation.

When same-sex marriage became a reality in some countries, the state of Massachusetts, and for a short period of time in California, the big question for many was whether a U.S. citizen or legal permanent resident who married a person of the same sex would be deemed to be legally married in the United States for federal immigration law purposes.

The question arose as to whether a U.S. citizen or legal permanent resident would be able to marry in one of these jurisdictions and thereby petition the U.S. Citizenship and Immigration Services to have his or her spouse immigrate as an alien relative. The answer to this question at present is “no”.

If federal courts are given the opportunity to rule on a challenge to a denial of an I-130 petition submitted by a same-sex couple, they may do little more than cite the Defense of Marriage Act (DOMA). DOMA provides in part, that a marriage is defined as a union between a man and a woman for all federal law purposes. At present the U.S. government is under no legal obligation to give effect to a foreign marriage between persons of the same sex.

We had quite a few inquiries this past week about K visas. Clients often mix the different K categories. Here is a brief summary for our confused readers.

On December 21, 2000, President Bill Clinton signed into law the Legal Immigration Family Equity Act (LIFE Act). The Life Act made K status available to spouses and children who are the beneficiaries of pending or approved Form I-130 immigrant relative petitions.

Subsequently, the Life Act was amended, thereby expanding the K category to include spouses and spouses’ children of U.S. citizens who are waiting outside the United States after filing of an immigrant relative petition. The spouses of U.S. citizens under K status are now classified as “K-3”, and the children of such spouses as “K-4”. The K-3 and K-4 visas have specific requirements for filing due to the different nature of the petitions.

From time to time we update our local readers about procedures affecting cases here in San Diego. This is from our local AILA liason meeting update. These procedures may apply in other states as well.

1. INFOPASS appointments for paying filing fees and fingerprint re-scheduling.

USCIS prefers that customers make INFOPASS appointments to visit USCIS offices to schedule re-fingerprinting or to pay fees and file applications. USCIS will accommodate someone without an appointment if there is an emergency such as a deadline for the filing of a motion to reopen or re-consider with the immigration court. A guard in Chula Vista will speak with a USCIS officer to allow you in the building to consider your emergency requet. USCIS points out that same-day INFOPASS appointments are usually available for the San Diego office to re-schedule biometrics. Biometrics can also be re-scheduled by mail. Note that filing fees can only be paid at the Chula Vista office.

Breaking news from the State Department. The online entry registration period for DV-2011 will be October 2 until November 30, 2009. Please, check back later for updates and instructions regarding online entry for DV-2011.

Form DS-5501 Electronic Diversity Visa (e-DV) Application for online Diversity Visa Lottery entry, is not available now. This official form is available only on the Department State, Diversity Visa online entry website at http://www.dvlottery.state.gov/ during the online entry registration period.

The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 to provide for a new class of immigrants known as “diversity immigrants” (DV immigrants). Alien petitioners for the Diversity Visa Program will no longer be permitted to submit a petition by mail. Instead, the Department will require that all petitions be submitted to it in an electronic format, using an Internet website dedicated specifically to the submission and receipt of Diversity Visa.