All Immigrant Petitions (I-130) to be processed by USCIS in United States
Lal Varghese, Attorney At Law, Dallas
The State Department and USCIS have completed a thorough analysis of the Adam Walsh Protection Act and came to the conclusion that all consular posts must immediately stop accepting or adjudicating any immigrant (I-130) petitions for family-based immigrant status 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. In any case in which a post has already accepted an I-130 from a petitioner but has not yet issued a visa, such consular post must forward the petition to the appropriate USCIS office in United States as "not clearly approvable." State Dept. 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.
This new procedure is due to the passing of a new law on July 27, 2006, the Adam Walsh Child Protection and Safety Act. Section 402 of that Act amends Immigration and Nationality Act (INA) section 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) by any petitioner who has 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:
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.
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 un reviewable discretion, determines that the petitioner poses no risk to the beneficiary. 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.
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."
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 un adjudicated I-130 petition. Rather, consular posts must advise individuals who seek to file such a petition that they should submit it directly to the appropriate USCIS office. 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 of the petitioner's eligibility to file. Pursuant to 0 FAM 42.41 N4.2-3(d) AND 8 CFR 204.1(e)(3), consular posts must forward all such I-130 petitions that petitioners 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.
The State Dept. is 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, 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.
All these new changes will affect US citizens who permanently live and work outside US since they are no longer able to file petitions for their immediate relatives like parents, spouses, and children under 21 with the consular posts any more. They must file such petitions with the USCIS Service Center having jurisdiction over their place of residence in US. Any US citizen petitioner whether a US citizen or Permanent Resident (LPR) before they could get the petitions approved must be cleared for criminal back ground checks mandated by the new law. This may also delay the processing the petitions also thereby delaying the whole process.
This will add another type of petitions also to the back log category of the petitions being handled by USCIS in addition to the naturalization applications. There are several thousands and thousands of naturalization applications pending for more than one to two years because of the security clearance issues. Many people resorted to file Mandamus Petitions against the USCIS before the Federal District Court seeking relief. But USCIS is planning to amend the rules thereby no mandamus can be filed against them for the delay caused by the security clearance by not conducting interview until and unless all security clearances are obtained. The new law may also prevent many US citizens and LPR’s to bring their relatives to US in the foreseeable future due to the delay in the security clearance.
Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You can visit our website at: www.indiaimmigrationusa.com for more information about other related immigration matters.
URL: www.indiaimmigrationusa.com
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