On May 22, 2024, U.S. Citizenship and Immigration Services (USCIS) implemented an update regarding family-based immigrant visa petitions. This new policy provides clear guidance on how USCIS will handle cases where applicants do not explicitly indicate whether they wish for their I-130 petition to be processed through a consulate or through adjustment of status within the United States.
Understanding the USCIS Policy Change
What Are Family-Based Immigrant Petitions?
Family-based petitions are a fundamental aspect of U.S. immigration law, enabling U.S. citizens and lawful permanent residents (LPRs) to sponsor certain family members for immigration to the United States. These petitions are filed using Form I-130, Petition for Alien Relative, which establishes the qualifying relationship between the petitioner (the U.S. citizen or LPR) and the beneficiary (the family member seeking to immigrate).
Why Accurate Petition Information Matters
The recent policy update emphasizes the importance of providing complete and accurate information on Form I-130 regarding the beneficiary’s current location and the intended method of obtaining an immigrant visa. Specifically, the petitioning U.S. citizen or LPR must indicate whether their family member plans to adjust status within the United States or pursue consular processing abroad. Additionally, the petitioning U.S. citizen or LPR should specify the preferred embassy or consulate if consular processing is applicable.
If the petitioning family member leaves questions blank or selects both the adjustment of status and consular processing options on Form I-130, USCIS will use its discretion to determine the appropriate processing path. USCIS’ decision is based on evidence of the beneficiary’s most recent location, such as the physical address provided on the petition.
USCIS Processing and Updates to the I-130 Petition
How USCIS Decides the Processing Path (AOS vs. Consular)
USCIS has now clarified the criteria it will use when deciding whether to retain the I-130 Petition with USCIS or send the approved petition to the National Visa Center (NVC).
USCIS will retain the I-130 Petition when: the petitioner indicates that the beneficiary is in the United States and will apply for adjustment of status; when the beneficiary’s physical address on the petition is in the United States and both adjustment of status and consular processing options are indicated; when the beneficiary’s physical address on the petition is in the United States and neither option is indicated; or when the beneficiary has filed Form I-485 (Application to Register Permanent Residence or Adjust Status), and their address is in the United States.
Conversely, USCIS will send the I-130 Petition to the NVC; if the petitioner indicates that the beneficiary will not apply for adjustment of status but will seek an immigrant visa through consular processing; if the beneficiary’s physical address on the petition is outside the United States and both options are indicated; or if the beneficiary’s physical address on the petition is outside the United States and neither option is indicated.
Updating Petition Information Before USCIS Issues a Decision
Petitioners can request updates on their petitions before final adjudication, such as changes in the beneficiary’s intended method of obtaining an immigrant visa, preferred embassy or consulate, and their address. To provide updated information on a petition that is still pending with USCIS, petitioners should contact the office indicated on the Form I-130 receipt notice.
Post-Approval Changes to Consular or Adjustment Processing
If USCIS has already approved the petition, the petitioner must file Form I-824 (Application for Action on an Approved Application or Petition) with a fee to change from adjustment of status to consular processing. To switch from consular processing to adjustment of status, USCIS coordinates with the NVC to return the petition for adjustment of status processing without requiring an additional fee or separate petition filing.
Conclusion
Understanding and adhering to these guidelines is vital for petitioners to avoid delays and additional fees in processing family-based immigrant visa petitions. This policy update aims to reduce processing delays and improve customer service for petitioners and beneficiaries navigating the immigration process.
We hope this information helps you navigate the updated USCIS guidelines effectively. Should you need further assistance or have any questions regarding your immigration process, please schedule a consultation with one of our experienced immigration attorneys.
