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The U.S. Department of State (DOS) has published a new policy based on the implementation of Section 402 of the Adam Walsh Child Protection and Safety Act of 2006, which would require all I-130 immigrant visa petitions for family-based immigrants to be filed directly with U.S. Citizenship and Immigration Services (US CIS) Service Centers. The DOS cable also gives instructions regarding how to proceed in cases where those I-130 applications have already been sent directly to U.S. Consulates abroad but are still pending. This processing change is effective immediately.
The Adam Walsh Child Protection and Safety Act of 2006 (Public Law 109-248), Section 402 amends the Immigration and Nationality Act (INA) Section 204(a)(1), rendering any petitioner who has been convicted of a "specified offense against a minor" ineligible to file a petition for immigrant status (i.e., and I-130 petition) under INA Section 203(a). After review of the Adam Walsh Act, the DOS and US CIS have concluded that U.S. Consular posts abroad must cease accepting or adjudicating any Form I-130 petitions for family-based immigrant status that were not adjudicated by USCIS. The reason for the change in policy is that both the DOS and US CIS determined that since Consular Officers do not have access to information regarding the criminal history/background of petitioners – which they have determined essential to the final determination and decision on the case – it is impossible for Consular Officers to therefore determine whether petitioners are eligible to file for immigrant status in a family-based classification. U.S. Consulates abroad are now required to inform any individual wishing to file and I-130 petition that it is necessary to file with the appropriate US CIS Service Centers directly. For information on where to file, petitioners may go to the US CIS website link with the office locator information: https://egov.immigration.gov/crisgwi/go?action=offices.type
&OfficeLocator.office_type=OS. In cases where an I-130 was already filed with a U.S. Consulate abroad, and which a Consular post has already accepted but not yet issued an immigrant visa, the Consular Officer is now required to consider that petition "not clearly approvable". Again, the reason the Consular Officer will give the petitioner is that the U.S. Consulate is unable to fulfill INA 204(a)(1)'s requirement for a determination of the petitioner's eligibility to file. Pursuant to 9 Foreign Affairs Manual (FAM) 42.41 N4.2-3(d) and 8 CFR 204.1(e)(3), all Consular Posts must now forward those pending I-130 petitions that were initially filed by petitioners at a U.S. Consulate abroad, with all supporting documents, to the appropriate US CIS office for a decision. The DOS policy was published yesterday and U.S. Consular posts will not provide petitioners with any further assistance at this time. We are expecting additional guidance from the DOS and U.S. CIS regarding Form I-600 petitions (for U.S. citizens residing outside the U.S. who wish to adopt an orphan and file an application to classify that orphan as an immediate relative), I-129F for K visas, and previously approved Form I-130 petitions. |
