Consular Processing
CLINIC Convening
Colorado Springs, CO
May 21, 2009
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Speakers
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Kristina Karpinski, CLINIC
Peggy Gleason, CLINIC
Guest Speaker: NVC Director, Lynne P.
Skeirik
AGENDA
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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
Resources
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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
National Visa Center
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Centralizes/administers initial processing
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5
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
Consular Processing
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Two ways to become a lawful permanent resident:
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Must be admissible under INA 212 (a)
Most commons bars to eligibility
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Adjustment of Status in US
Consular Processing
Unlawful presence and permanent bar for unlawful
presence and return
Affidavit of support problems
Prior removal
Crimes
Fraud
Documentation Problems
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Use original primary documents
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Check Foreign Affairs Manual for availability
of documents
If primary documents unavailable:
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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
If Secondary Evidence
Unavailable:
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Affidavits – written statements sworn and
affirmed by at least 2 people
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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.
DNA Testing
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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
DNA Test Process
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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
Contesting DNA Request
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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
Consular Interview
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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
Preparing Clients for Interviews
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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
Interviews at Consulate
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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
Next Step
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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
How to Challenge Denial
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Negotiate with Consul – supply further
documents on issue
If legal error – request advisory opinion, Ofc
of Public Liaison, DOS
legalnet@state.gov
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Rm L703, DOS, 2401 E St. NW, Washington, DC
20520 fax 202 663-3899, ph 202 663-1225
File a Waiver
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I-601 or I-212
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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.
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I-601 for Crimes
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Some crimes are waivable under 212(h)
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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
I-212 permission to reapply
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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
Waivers and I-212 Appeals
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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
Meeting One-Year Requirement
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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
Communication with Consulates
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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
CSPA cases at Consulates
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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
WHEN IS I-864 REQUIRED?
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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).
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Affidavit not required - file I-864W
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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
ISSUES FOR INDIVIDUAL
CONSULATES
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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
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Many consulates will ask for IRS generated tax
transcripts though they can accept IRS 1040s too
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Some insist on updated employment information
for sponsor or joint sponsor if close to income
cutoff
OVERSEAS DERIVATIVES
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Only for spouse or children of persons in the
preference categories (family or employment).
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After principal has adjusted (or at time of filing
adjustment) File I-824 with USCIS.
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Once I-824 approved – sent to NVC to begin
consular processing for derivatives
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Some consulates will begin processing upon request
of derivative and proof of principal’s status/family
relationship.
Consular Return of Petitions to CIS
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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
Problems
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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?
Problems
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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?
Problems
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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?
Problems
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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?
Problems
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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?
Problems
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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?