Update on Long-Pending I-130 Petitions

After the significant forward movement in many of the family-based preference categories in the fall, the government has received a significant number of I-130 family-based immigrant petitions in a number of preference categories.  In an effort to process these pending I-130 petition in a more efficient manner, in November 2010, USCIS transferred approximately 36,000 I-130 petitions from their California Service Center to their Texas Service Center.   USCIS hoped that this redistribution of work would result in more timely adjudication of these petitions.

However, according to USCIS, due to a number of unforeseen circumstances at their Texas Service Center, many of these cases have not been processed and are beyond the estimated processing times.   On Feb. 7, 2011, USCIS announced a rapid response plan to expedite the adjudication of these  petitions.   Ironically, the rapid response plan has been to transfer a “large number of these Immediate Relative petitions back to [their] California Service Center to take advantage of resources currently available”.     USCIS has indicated that petitioners will see an action such as an approval, denial or a Request for Evidence (RFE) on their case from the California or Texas Service Centers by the end of  February.

Also, as of February 14, 2011, USCIS provided an update on the processing status of these 36,000 cases:  10,264 have been approved; 55 have been denied; 4,137 have been issued a request for evidence or notice of intent to deny; and 408 have been referred to a local USCIS office for interview.   Based on these numbers, it seems that USCIS is less than halfway through reviewing these 36,000 I-130 petitions and, while we remain optimistic, we are not sure if they will be able to initially review every single one of the remaining approximately 20,000 by the end of February.

We will continue to monitor developments and updates from USCIS.  If you haven’t already, please feel free to subscribe to our free weekly newsletter or contact us with any questions or comments.

K-3 Visa Application Procedure Changes

The Department of State (DOS) announced recently that it is changing the procedure for K-3 (spouse) visa applications filed at U.S. consulates abroad.

The procedure is effective February 1, 2010, and applies in cases where the I-130 immigrant petition and the I-129F K-3 petitions are both approved and sent to the National Visa Center (NVC).  In such instances, DOS will administratively close the K-3 application and will proceed instead only with the immigrant visa application based on immediate relative category (IR).

Background of K-3

The K-3 visa allows the foreign spouse of a U.S. citizen (and his or her dependents) to be admitted into the U.S. while they are waiting for their permanent residency application to be completed.  K-3 visa also allows the foreign spouse to engage in employment in the U.S. while waiting for approval of the green card.

The K-3 visa requires the filing of an I-130 and I-129F petitions with USCIS.  In terms of timing, the I-130 and I-129F are filed almost at the same time.  Generally, the I-129F K-3 petition is approved slightly before the I-130 and, in such cases, the foreign spouse can apply for the K-3 visa stamp and travel to the U.S.

The New K-3 Policy

However, in some cases the I-130 and the I-129F are approved at the same time.   In such cases, the foreign spouse faces the (not always so clear) choice of applying for K-3 visa or green card at the U.S. consulate.  This is the kind of situation the new DOS policy is intended to address and prevent any confusion.  Under the new policy, when the I-130 and I-129F are approved at the same time and received by NVC, NVC will, on its own, administratively close the I-129F K-3 application process.  NVC will contact the applicant with instructions on how to process the IR green card process.

According to DOS, the rationale behind this procedure is that the need of the K-3 visa ends once the green card I-130 petition is approved because the foreign spouse would be entitled to apply for green card immediately.   Our past experience has confirmed this — when a foreign spouse has to choose between K-3 or green card, the choice is confusing and counterintuitive.

An important note: the new procedure applies only when NVC has received both the approved I-129F and I-130 petitions.  If NVC receives only the approved I-129F petition, the foreign spouse can apply for the K-3 visa while the I-130 remains pending.   In this case, NVC will send the petition to the embassy or consulate in the country where the marriage took place or, if the marriage took place in the U.S., to the embassy or consulate that issues visas in the foreign spouse’s country of nationality.