By George Lake
Filing an I-130 petition for alien relatives is a crucial step in the process of immigrating to the United States. In most cases, these petitions are filed within the United States with U.S. Citizenship and Immigration Services (USCIS). However, exceptional circumstances may arise where individuals find themselves outside the U.S. and unable to file domestically. In such situations, 9 FAM 504.2-4, a section of the Foreign Affairs Manual (FAM), provides guidance on when and how these petitions can be filed at a consular post abroad.
I-130 Petitions at Consular Posts Abroad
9 FAM 504.2-4 outlines the circumstances under which consular officers at posts abroad are authorized to adjudicate I-130 petitions. While consular posts primarily handle visa-related matters, they can consider “clearly approvable” petitions in certain cases. If a consular officer approves an I-130 petition at a post that does not issue immigrant visas (IVs), the petition is then forwarded to the IV processing post with jurisdiction over the country.
The Critical Requirement: “Clearly Approvable” Petitions
The cornerstone of this process is that consular officers may only approve petitions that are “clearly approvable.” If a petition is not clearly approvable for specific reasons, it must be sent to the National Visa Center (NVC) along with a memorandum explaining why. This will cause delay to the processing of your green card. The reasons for a petition not being clearly approvable include:
- Primary evidence submitted doesn’t establish the petitioner’s U.S. citizenship or the claimed relationship with the beneficiary.
- The petitioner cannot provide primary evidence.
- USCIS instructions due to concerns raised by the Adam Walsh Act check.
In such cases, the consular post should provide a memorandum on Department of State letterhead to accompany the petition, which should be marked as “fee receipted elsewhere” and sent for further adjudicative action.
Forwarding to USCIS
NVC, in turn, will forward any petition that is not clearly approvable, along with supporting documents and a memorandum, to the designated USCIS office for adjudication. The specific USCIS office depends on the type of petition:
- Form I-130: USCIS Nebraska Service Center.
- Form I-130 (adopted children): USCIS National Benefits Center.
- Form I-360: USCIS Nebraska Service Center.
- Form I-600: USCIS National Benefits Center.
Which Petitions Can Be Filed at Post?
The authority to accept petitions for immigration benefits at consular posts is delegated by the Department of Homeland Security (DHS). The types of petitions that consular officers can accept and adjudicate at posts abroad include:
1. Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, when filed by a widow or widower.
2. Form I-600, Petition to Classify Orphan as an Immediate Relative, accompanied by an approved Form I-600A, Application for Advance Processing of Orphan Petition.
3. Form I-130, Petition for Alien Relative for immediate relatives in limited exceptional circumstances consistent with 9 FAM 504.2-4(B)(1).
4. Form I-130, Petition for Alien Relative filed by U.S. citizen military service members, consistent with 9 FAM 504.2-4(B)(1).
Conditions for Filing Petitions at Post
9 FAM 504.2-4(B)(1) specifies the physical presence and residence requirements for adjudicating I-130 and I-360 petitions at consular posts abroad. These requirements ensure that the petitioner and beneficiary meet specific criteria:
- Physical Presence:
– Both the petitioner and beneficiary must be physically present in the consular district.
– The petitioner must file the petition by personally appearing at the consular section with original documents (while this is the rule, this is not the case at some Consulates such as Frankfurt which require the petition to be mailed to them).
– Petitioner’s residence is not mandatory for Form I-130 but can be considered under exceptional circumstances.
– Form I-360 requires the widow(er) to be a resident of the consular district.
– Form I-600 does not require the petitioner to be a resident but necessitates their physical presence within the jurisdiction during the adoption or IV process.
Exception for National Interest or Emergent/Humanitarian Situations
In rare cases of national interest, emergent, or humanitarian situations, consular officers may accept and adjudicate a Form I-360 petition filed by a widow(er) who does not reside within the consular district. However, such cases must genuinely qualify for processing based on these grounds, and concurrence from CA/VO/F analyst should be sought before accepting the petition.
Adjudicating Exceptional Circumstances Form I-130 Cases
9 FAM 504.2-4(B)(1) also provides guidelines for adjudicating exceptional circumstances Form I-130 cases. Consular officers have the discretion to accept and adjudicate such filings when they encounter cases that meet specific criteria. Examples of exceptional circumstances include:
- U.S. Military emergencies: When a U.S. service member abroad faces sudden deployment or transfer.
- Medical emergencies: When a petitioner or beneficiary requires immediate travel due to an urgent medical situation.
- Threats to personal safety: In cases of imminent threats to personal safety, such as civil strife or natural disasters.
- Close to aging out: When a beneficiary is near aging out of eligibility.
- Petitioner has recently naturalized: When a petitioner has recently become a U.S. citizen, and family members require a new petition.
- Adoption of a child: When a petitioner has adopted a child abroad and needs to depart the country urgently.
- Short notice of position relocation: When a U.S. citizen petitioner working abroad receives a job offer in the U.S. with little notice.
- Other non-routine exceptional circumstances: The consular section may exercise discretion for other emergency situations, but these must be truly urgent and not addressed sufficiently by filing with USCIS online or domestically with an expedite request.
The provisions outlined in 9 FAM 504.2-4 provide a framework for consular officers to handle exceptional circumstances where individuals are outside the U.S. but need to file I-130 petitions. These guidelines help ensure that the immigration process remains flexible enough to address urgent and exceptional situations while upholding the integrity of the overall immigration system. Consult with an experienced US immigration attorney to find out if your case can be expedited in this way. It is important to note that every Consulate has their own idiosyncrasies and the assistance of an experienced US immigration attorney can save time when your green card is needed in the shortest time possible.