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QUESTION

1. If the petitioner is from Mexican who married a US citizen, can request a B2 visa prior to submitting the I-130 petition?
2. How plausible is it for a Mexican to receive a B2 visa, and how long is the wait period?
3. How long will the wait period for a I-130 to be approved, or where can I find such information?

ANSWERS

1. First, to obtain a B-1 or B-2 visa, an individual must satisfy a U.S. consular official that he will return to his home country after a brief stay in the United States as a business visitor or tourist. This applies to all B-1 and B-2 visa applicants irrespective of where his family members may reside. The applicant has the burden of proving substantial ties to his home country in the process. In countries with less than ideal social and economic situations, consular officials know that many B-1 and B-2 visa applicants will not return to the home country. Therefore, consular officials deny many B-1 and B-2 visa applications in certain countries (e.g., China, India and Mexico) because they know that based on statistics, many people will not return and will overstay their visas and work illegally in the U.S.
2. Second, a B-1 or B-2 visa applicant who has a U.S. citizen fiancé or spouse who is residing in the U.S. is not precluded from temporary visits to the United States. However, obtaining the visa is difficult in many cases. An immediate family member or fiancé in the U.S. would be a reason for the applicant to stay in the U.S. On the one hand, an applicant who is truly intending to enter the U.S. with a B-1 or B-2 visa for a brief period, and who will then depart the U.S. and return to the home country and eventually complete immigrant visa processing at a U.S. Embassy or Consulate, may have a stronger case to make for the visa to be issued if there is a specific reason to visit the U.S. and a fixed departure date from the U.S. On the other hand, a B-1 or B-2 visa applicant who appears to a consular official to have the fixed intention to immigrate to the U.S. and no good reason to return to his home country will likely be denied a visa under Section 214(b). In such an instance, the consular official would instruct the applicant to obtain an immigrant visa. Consular officials use INA Section 214(b) as a basis to deny even the most qualified applicants, and your client’s ability to secure a visa depends on his facts and on the strength of his ties to Mexico.
3. Third, credibility of the applicant is the most important “rule” for an attorney to explain to a client. An attorney must be clear with his or her client that the client must be honest and disclose true and accurate information in the visa process. Even a silence could be construed as a misrepresentation under INA Section 212(a)(6)(C). For example, Form DS-160 and 156 ask the applicant whether a spouse or fiancé resides in the U.S. The applicant must also disclose the status of the relative or fiancé. The failure to disclose this information on the form is a huge problem for an applicant who has a fiancé or spouse in the U.S. Failing to disclose information to obtain a visa could result in a later finding of inadmissibility under the fraud and misrepresentation provisions of INA Section 212(a)(6)(C).
4. Finally, an attorney may not counsel a client to lie on an application, nor may an attorney tell a client to obtain a B-2 visa in order to enter the U.S. to have a green card process (I-130/I-485) commenced. As an attorney, be sure that you are giving 100% clear advice to your client with respect to the importance of disclosing relevant facts in the visa application process. Specifically, your client needs to understand that one may not apply for a B-2 visa, and then use that visa for the purpose of entering the U.S. to adjust status by filing a Form I-485.

Filing an I-130 alone is permissible before or after a B-2 visa is issued to your client, but the I-130 should be filed with your client having the good faith intention to leave the U.S. after a brief lawful stay in B-2 status to return to Mexico to complete the immigrant visa process.

• INA § 101(a)35
• INA § 101(b)1
• INA § 101(b)2
• Matter of Lovo, 23 I&N Dec. 746
• Defense of Marriage Act, PL 104-199, 110 Stat. 2419 (1996)

Categories of Family- Based Immigration

US Citizens and Lawful Permanent Residents may sponsor certain groups of family members.

A. Immediate relatives are not subject to numerical limits OR per country limits (INA 201 (b)(2)(A)(i))

Immediate relatives come in four flavors and they all involve family relationships with US citizens:

1. Spouse of US citizen
2. Unmarried child under 21 years of age of US citizen
3. Parents of US citizen over age 21
4. Spouses of deceased US citizens married for at least two years at the time of the death of the US citizen spouse.

Family Preference Categories (Limited to 480,000 per year worldwide less the number of immediate relatives in the prior year together with the Number of people paroled into the US on humanitarian grounds during the second preceding fiscal year plus the number of unused employment based visas in the preceding year (INA section 201(c)

First: Unmarried Sons and Daughters of US citizens: 23,400, plus any number not required for 4th preference;

Second: Spouses, Unmarried Children under 21 years of age and Unmarried Sons and Daughters of US permanent residents (green card holders): 114,2000 plus any unused 1st preference numbers

2a: 77% of overall second preference limitation, of which 75% are exempt from the per-country limit;

2b: Unmarried Sons and Daughters of US permanent residents, 23% of the overall second preference limitation;

Third: Married Sons and Daughters of US citizens: 23,400, plus any numbers not required by first and second preferences;

Fourth: Brothers and Sisters of US citizens over 21 years of age: 65,000, plus any numbers not required by the first 3 preferences.

NEVER GRANDPARENTS, aunts or uncles or married children of US permanent residents. If someone has a pending I-130 as the unmarried son or daughter of a US permanent resident and then marries, the petition is automatically revoked.

Child: unmarried children under age 21. Son or daughter may be over 21. Stepchildren if relationship created prior to child attaining 18 years of age.

Reading the visa bulletin:

Download at www.travel.state.gov. Type in "Visa Bulletin August 2009" and you'll be able to download the visa bulletin, which consolidates family, business and diversity lottery information.

Page 1 has the various FB categories described. Page 2 has the family-based visa bulletin categories. You're looking for the spouse of a green card holder. Currently processing cases filed on or before January 15, 2005 for the world-wide preference. If you are from Mexico, however, the priority date is September 22, 2002.

FB categories get backlogged based on demand. No more than 7% of total annual immigration may be from any one country. So high rates of immigration on the family or business side produces future family immigration numbers.

Completing and documenting form I-130, Petition for Alien Relative

I always have the petitioner and beneficiary complete this in draft. If there are untruthful answers provided, you want to show that the attorney was not responsible for them.

Form I-130 is mostly biographical information.

One thing to watch out for is someone who got their permanent residence status through marriage to a US citizen if the marriage ended in divorce. IF the marriage was long-term, nothing to worry about. But USCIS will be on the lookout for serial petitioners because they may suspect marriage fraud.

If the applicant is in the United States and entered without inspection be careful - three and ten year bars. Want to make sure that you aren't turning someone into the government that you can't ultimately adjust or visa process.

Also in a marriage case be careful if the marriage took place while the beneficiary spouse was in proceedings.

#17 - spouse and children of the relative being sponsored. Don't want to leave someone off and then try to immigration them later.

Documenting the Form I-130:

G-28 on file signed by petitioner.

Proof of the petitioner's US citizenship by birth or naturalization. Proof of the petitioner's LPR status - copy of resident alien card.or htepassport stamp and personal information page from the passport;

Proof of family relationship is the Beneficiary is a spouse:

1. Marriage certificate showing petition was married to the child's other parent (if applicable) and translation
2. Final divorce decree if applicable
3. Passport-style photo of the petitioner and beneficiary
4. A signed G-325A for the petitioner and the beneficiary
5. documentation showing joint ownership of real estate
6. Copy of joint bank account
7. Copy of joint lease or a letter from the landlord confirming that both spouses reside at the same address
8. 401K beneficiary forms
9. Copy of joint health insurance
10. Copy of car insurance showing each is insured to drive the other's car
11. Copy of life insurance beneficiary forms
12. Joint ownership of a vehicle
13. Joint credit card bills, cell phone bills, electric bills, gas bills, etc. bearing their residential address
14. Birth certificates of children both to the marriage
15. Affidavits from those with personal knowledge of the bona fides of the relationship (try to avoid needing to go that far).

If child and petitioner is the mother:

Copy of the child's birth certificate showing the name of the mother and the child, date and place of birth

If child and the petitioner is the father:

Copy of the child's birth certificate showing the petitioner is the father, the child's name and date and place of birth

Copy of the marriage certificate showing the parents were married to one another

If the petition is for a child who is born out of wedlock and petitioner is the father.

If the child was NOT legitimated before reaching age 18, must show evidence of the parent-child relationship existed between the father and the child before the child reached age 21. Letters, visits, evidence of support, lived with the child, and otherwise showed interested in the child's welfare.

Brother or sister:

A copy of the petitioner's birth certificate and the beneficiary's birth certificate showing at least one parent in common. If there are different mothers but the fathers are the same, submit copies of he marriage certificates of the father to each mother and show the proof of legal termination of the prior marriage(s) (final divorce decree, annulment, death certificate).

Mother:

Copy of petitioner's birth certificate showing the mother's name and the petitioner's name, date and place of birth.

Father:
Copy of petitioner's birth certificate showing the father's and mother's names and the petitioner's name, date and place of birth. And copyd of parents' marriage certificate and if there were prior marriages that they were terminated legally.

Adoptive parent or adoptive child:

Show adoption decree prior to attaining age 16 and proof that the child was in the legal custody of and resided with the parent who adopted him or her for at least two years before or after adoption.

Stepparent/Stepchild:

Proof of the marriage certificate of stepparent to the child's natural parent and showing the marriage occurred before the child was 18, and proof of prior marriage termination and copy of steppchild's birth certificate showing the natural parent and the child's names.

Where to find civil documents by country:

http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3272.html

Where to file a standalone I-130?

File the I-130 form with check payable to the Department of Homeland Security for $355 stapled to the G-28.

Use overnight mail.

If your petitioner lives in the West:

USCIS
P.O. Box 804625
Chicago, IL 60680-4107

If your petitioner lives in the East:

USCIS
P.O. Box 804616
Chicago, IL 60680-4107

If you're filing to adjust:

USCIS
P.O. Box 805887
Chicago, IL 60680-4107

Courier/Fedex

USCIS
Attn: FBAS
131 South Dearborn - 3rd floor
Chicago, IL 60603-5517

Petitioner's living in Canada file at Vermont Service Center or at nearly US embassy or consulate.

Adam Walsh Act:

Both petitioners and beneficiary undergo security checks. A petitioner will not be able to sponsor a family-based petition unless the Secretary of Homeland Security exercises his or her sole and unreviewable discretion that the petitioner poses no risk to the beneficiary.

Any person convicted of sex offenses against a minor - including kidnapping (except parental kidnapping), solicitation to engage in sexual conduct, possession, production or distribution of child pornography; video voyeurism, solicitation to practice prostitution or sexual performance, etc.

Grounds of Exclusion:

These are reasons people would not be allowed to immigrate to the US. In some instances, a waiver of the ground of exclusion is possible. In others, the prospective immigrant will be disqualified from immigrating to the US.

• Membership in the Communist party
• Persecution of others
• Having been deported from the US
• Leaving the US to avoid being drafted into the US Armed Forces
• Criminal convictions, even if pardoned
• Asserting diplomatic immunity
• Knowingly committed any drug-related offense or crime of moral turpitude for which you have not been arrested
• Engaging in illegal gambling
• Helping someone enter the US illegally
• Selling or helping others to sell illegal drugs
• Withholding custody of a US citizen child outside the US from a person granted custody of the child
• Intending to engage in spying, sabotage, intending to overthrow the US government
• Health (certain disabilities, insufficient immunizations, addictions, infectious diseases, etc.)
• Inability to support oneself

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