In U.S. immigration law, “immediate relative” means a spouse, parent or unmarried child under the age of 21. “Child” includes children adopted before the child’s 16th birthday, and stepchildren whose parent married a USC before the stepchild’s 18th birthday. Immediate relatives of USCs are entitled to immediately become U.S. lawful permanent residents (“LPRs”) upon approval of their applications. USCs can sponsor their spouses, parents and children; USC children who are at least 21 can sponsor their parents. Spouses of sponsored parents and children of sponsored spouses may also be entitled to become LPRs as “derivatives” of the “principal immigrant”; the technical term is “accompanying or following to join.”
LPRs can sponsor their spouses and children, too, but not their parents, and they must be prepared for years of processing delays. Other relatives of both USCs and LPRs — for example, adult unmarried children or brothers and sisters –face even longer delays, depending on the applicant’s “preference category” and citizenship.
Step 1: USCIS or Department of State?
Both USCIS and the Department of State process LPR applications. USCIS for the most part ”adjusts status” of people who are already “inside” the U.S. The Department of State handles applications from “outside,” at a designated consulate in each country (“consular processing”). USCIS also has offices in many countries, but the applications they handle are outside the scope of today’s column.
Section 506 of the Covenant provides that if you are a U.S. citizen living in the CNMI, your alien immediate relative who lives here with you is “inside” the U.S., and is deemed “admitted” to the U.S. for immigration purposes. You can therefore make your application on behalf of your alien relative through USCIS and, since March 2009, have the adjudication interview on Saipan. This avoids the sometimes lengthy delays and additional expense of traveling and then waiting for adjudication by the Department of State consulate in your alien relative’s home country. The Department of State Web site has links for the approval and denial records for each consulate. As a general rule, your chances are better, statistically, if you go through USCIS.
Because the federalization law repeals Section 506 of the Covenant, it is unclear at this time how the federal authorities will handle applications of alien relatives of USCs permanently residing in the CNMI. This is a potentially significant issue that we hope will be resolved prior to November 28.
Step 2: Financial Requirements
Since the 1990s, each USC or LPR sponsor (including his or her household) must meet certain minimum income requirements, based on household size. These income requirements change each year according to the USCIS Poverty Guidelines, which are available on the USCIS Web site (see Internet addresses at the end of this column). There are exceptions: for example, an applicant who has paid Social Security Tax (FICA) for 10 years during marriage to the sponsor, or who is married for at least 10 years to a sponsor who has paid FICA for 10 years, may be exempt from the Guidelines. Assets may be used if income is not enough. Or you may find a “joint sponsor.”
Being a joint sponsor is like co-signing a car loan, except that the obligation is more open-ended. With a car loan you know your maximum liability. The purpose of the Poverty Guidelines is to screen out applicants who may require or become eligible for public assistance. Therefore the sponsor is responsible for repayment of certain public benefits if used by the sponsored immigrant. The sponsor’s liability ends when the sponsored immigrant becomes a USC, or has (or can be credited with) 40 quarters of FICA payments, or is no longer an LPR, or dies.
Form I-864, “Affidavit of Support,” available online from USCIS, has detailed explanations and instructions regarding the financial requirements..
Step 3: Forms, Forms, Forms (and Supporting Documents)
At a minimum, you will need: Form I-130, Petition for Alien Relative (sponsor’s petition); Form I-485, Application for Adjustment of Status (signed by the immigrant); Form G-325A, Biographical Information (for both petitioner and applicant); Form I-864, Affidavit of Support and, possibly, Form I-864A for household member(s), including the immigrant (there are variants of these forms for different situations); and Form I-683, Report of Medical Examination and Vaccination Record. The medical exam must be done by a “civil surgeon” authorized by USCIS; there currently are four approved physicians on Saipan who perform the necessary examinations. Applicants from the CNMI currently do not have to file Form I-795, Application for Employment Authorization.
The I-130, I-485 and I-864 all require extensive supporting documentation. If you are applying for a spouse, it is a very good idea to submit lots of copies of the things that couples accumulate in their lives together, in addition to the minimum documentation required by the forms themselves. These additional items can range from family photographs to copies of phone, power and credit card bills, life and medical insurance designations, joint bank accounts, and joint car ownership documents to affidavits from friends and family (these affidavits are most appropriate when there is a lack of other documentation). Application packages prepared by our office usually are between 1 and 2 inches thick for a single applicant.
Step 4: Where to File
Applications from the CNMI are sent to a USCIS address called the “Chicago Lockbox,” and then sent to the Missouri Service Center for initial review. Missouri sometimes sends Requests for Evidence (“RFEs”), but is required to forward applications to the USCIS Guam Field Office for processing, interview and adjudication. The Application Support Center (“ASC”) on Saipan is supervised by the Guam Field Office.
Some applications, chiefly when USC children sponsor parents, are diverted to the California Service Center and adjudicated without interview. We have seen that happen several times since March.
Step 5: And Then What?
After you file, the first response from USCIS will be receipts for the I-485 and I-130 filing fees. You may or may not receive an RFE, which will require that you reply before processing continues. Once your file reaches Guam, you will receive a notice for “biometrics” — digital fingerprinting and photograph — at the Saipan ASC, followed by an interview appointment. Children under 14 are not required to have their biometrics taken, nor to prove good moral character.
If you are among those whose applications are diverted to the California Service Center, you will still receive an appointment for biometrics at the Saipan ASC.
Step 6: The Interview
The sponsor and the immigrant must be present at the interview. (Exception: sponsoring USCs on active military deployment.) Your attorney may be present. If your immediate relative has trouble with technical English or legalese, it is a good idea to arrange for an translator to be present; but it is also a good idea to demonstrate that husband and wife can communicate well enough for everyday purposes without having an translator present.
The interviewer will usually start by making it clear that he or she is a federal officer, (and, therefore, lying is a federal crime), and then proceed to read through the long list of detailed questions already answered on the I-485 (examples: “Have you ever been arrested or detained? Have you ever engaged in prostitution? Have you ever been a communist? Have you ever committed a crime for which you were not charged?”). That is where you will need the interpreter; we have seen aliens who are fluent English speakers stumble in their answers to these questions. Applicants who answer “yes” to any of the questions on the list may need to apply for a waiver; we will discuss waivers in another column.
Our clients have had interviews as short as seven minutes, and as long as 2 1/2 hours, both of which resulted in approvals. The primary concern of USCIS in spousal applications is sham marriages, and most problems for married couples occur when they do not convince the interviewer that their marriage is real. Most often, if the interviewer is not satisfied, the couple is called back for a second interview, which is conducted with husband and wife separated. In our experience the majority of applicants are approved at or after a single interview. Please note that our experience is limited to our clients. We screen our clients carefully before we agree to represent them. We refuse to represent clients who we conclude may be engaged in a sham marriage or other forms of fraud or deception.
Step 7: What Happens After the Interview
At the end of the interview, your relative’s application may be approved on the spot, or you may be told there will be “further review” (which more likely means a cautious interviewer than a failed interview), or you may be asked to provide some additional documentation.
If there is a denial, you will be notified in writing, specifying exactly why the denial is issued. Most denials can be appealed. If the application is approved, your relative’s passport may be stamped with a temporary “I-551” visa stamp which is proof of status until the actual “green card” arrives. Or you may be told to ask for such a stamp if you intend to travel before the green card arrives.
Step 8: How Long Does It Take?
The latest information on the USCIS Web site indicates that as of June 30, the Guam Field Office was processing applications with March 2, 2009 filing dates. That means that there is a four month waiting period before a filed application begins to be processed by the agency and then there are further delays to complete the biometrics, interview, adjudication and issue the green card. Current average processing time for our clients, from initial filing date to approval, is 2 1/2 to 6 months. We anticipate that this time may increase as November 28 draws closer and the number of applications from the CNMI increases.
Web sites: USCIS, for forms and processing times, www.uscis.gov; Department of State, www.state.gov; Department of State Visa Bulletin (visa processing times for all classes of immigrants, from all countries), http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.
The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by e-mail to lexmarianas @pticom.com. Readers may also e-mail written questions through the Marianas Variety at [email protected].
